COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
Comity of nations is the recognition which
one nation allows within its territory to the
legislative, executive or judicial acts of another
nation, having due regard both to
international duty and convenience, and to
the rights of its own citizens or of other
persons who are under the protection of its
laws.
CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.1
PART ONE: INTRODUCTION
The reasonable, if not necessary conclusion
appears to us to be that judgments rendered in
France, or in any other foreign country, by the
laws of which our own judgments are
reviewable upon the merits, are not entitled to
full credit and conclusive effect when sued
upon in this country, but are prima facie
evidence only of the justice of the plaintiff’s
claim.
I. Scope and Conflict of Laws: Nature,
Definition and Importance
A.
Diversity of Laws, Customs and
Practices
PRIL: that part of municipal law which covers
cases with a foreign element.
B.
Hilton vs. Guyot
(1895)
FACTS: Defendants were sued in France, and
the French court rendered judgment against
them. Plaintiffs sued defendants on the French
judgment in the US. The US court held the
French judgment conclusive.
Definition
Second
Edition of Jurisprudence: private
international law is that part of the law of each
state or nation which determines whether, in
dealing with a legal situation, the law of some
other state or nation will be recognized, given
effect or applied.
HELD: No law has any effect, of its own force,
beyond the limits of the sovereignty form
which its authority is derived. The extent to
which the law of one nation, as put in force
within its territory xxx shall be allowed to
operate within the dominion of another nation,
depends upon xxx “the comity of nations.”
Distinguished from Public International Law and
other disciplines:
1
Atty. Dela Cruz is an MCLE lecturer and a Bar
Reviewer at the Jurist Bar Review Center and the
Cosmopolitan Review Center. He teaches law at UST,
FEU and the Bulacan State University. He obtained his
Master of Laws (with Distinction) from the London
Metropolitan University, and a Postgraduate Diploma
in International Trade Law from the University College
London (UCL), U.K., both as a Chevening scholar of
the British government. He completed a Postgraduate
Fellowship on Leadership and International Relations
from the John F. Kennedy School of Government,
Harvard University, USA. He also holds a Masters in
Public Management degree from the Ateneo School of
Government. He obtained his Bachelor of Laws
degree (with honors) and an AB Legal Management
degree (cum laude) from the University of Santo Tomas
as a Rector’s Scholar. He is on his 3rd term as an
elected Councilor of Baliuag, Bulacan and the current
Vice-President (Luzon) of the Philippine Councilors
League. He is also a Partner at the Ponce Enrile
Reyes & Manalastas (PECABAR) Law Office in Makati
City.
Public International
Law
Private
International Law
Principally
governs
states
in
their
relationships amongst
themselves
Principally
governs
individuals
in
their
private
transactions
which
involves
a
foreign element
As to sources of law:
Codified in Art. 38 of
the
Statute
of
International Court of
Justice
Generally derived from
the internal law of
each state and not
from
any
“international”
law
extraneous
to
municipal law
As to persons involved:
Governs only states Governs individuals or
and
internationally- corporations
recognized
organizations
As to transactions:
Involves state-to-state Relates
to
private
1
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
or
government-togovernment matters
As to remedies:
In case of violation, a
state may resort to
1) diplomatic protest
2) peaceful means of
settlement (diplomatic
negotiations,
arbitration
or
conciliation)
3) adjudication by filing
a
case
before
international tribunals
4) use force short of
war, or eventually go
to war
C.
transactions
individuals
II. A Brief History and Development of
Conflict of Laws
between
All the remedies are
provided by municipal
laws of the state, such
as resort to courts or
administrative tribunals
A.
Roman Law

Ius gentium

Italian City States
The rise of this city states prompted
intensive study of conflict of laws
Bartolus: Father of Conflict of Laws;
formulated Theory of Statutes
Because Northern Italy was divided into
several city states each having their own
laws on private matters, the “Statute” was
applied to problems of choice of law.
Object, Function and Scope
Object and Function of Conflict of Laws: to
provide rational and valid rules or guidelines in
deciding cases where the parties, events or
transactions are linked to more than one JD.
In PIL, it means the law of nations
It is used in the early Roman empire to
mean the body of rules developed by the
praetor peregrinus to resolve disputes
between foreigners or between foreigners
and Roman citizens
It includes Greek legal doctrines and
concept of bona fides as ius civile only
applies t Roman citizens
Conflict of law rules aim to promote stability and
uniformity of solutions provided by the laws and
courts of each state called upon to decide
conflicts cases.
Statute is classified into:
a. real – applied to immovable
property within the state
b. personal – followed the person
even outside the domicile and
governed questions on personal
status, capacity and movables
c. mixed – contracts, if entered into
by the different nationals
Scope: covers the entire range of laws as it cuts
across the subjects of JD of local courts or
tribunals, the law on evidence or proof of foreign
law, the personal law of individuals and juridical
entities, naturalization law, laws on domicile and
residence, family relations, contracts, torts,
crimes, corporation law and property law.

16th century, France
Charles Dumoulin – advocated a method to
determine what law would govern contracts
between different nationals
3 Issues in Conflict of Laws:
1) Issue of adjudicatory JD: determines the
circumstances that allow for a legal order to
impose upon its judiciary the task of deciding
multi-state and multinational disputes
Bertrand
D’Argentre – formulated the
principle of universal succession followed in
the Spanish Civil Code and adopted in the
Phil. Civil Code
2) Issue of choice-of-law: refers to the probable
sources from which the applicable law of the
controversy may be derived

Netherlands
Ulrich Huber – first used the term, conflict of
laws
3) Recognition and enforcement of foreign
judgments: study of situations which justify
recognition by the forum court of a judgment
rendered by a foreign court or the enforcement
of such within the forum
Dutch jurists asserted that State has no
obligation to apply a foreign law unless
imposed by treaty, by comitas gentium or on
consideration of courtesy and expediency.
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
Dutch jurists led by Huber developed
territorial principle where the laws of every
state may operate only within its territorial
limit but such sovereign state may recognize
that a law, which operated in the country of
its origin, shall retain force everywhere
provided that it will not prejudice its
subjects.


Comitas Gentium
because
of
transactions.
was readily accepted
increasing
international

Ius Commune, applied by Italian and French
jurists, was a supranational law based on
Roman law and which became the
continental European common law.
Nations codified their national laws which
included conflict of laws provisions.
Conflict of Laws in the Philippines
Ex. French Civil Code of 1804
became the pattern for Civil Codes
of Spain, Belgium and Romania
nationality law principle (contained
in Art. 15 of our CC) was provided
in Art. 3 of the French Code

Justice Joseph Story –
Spanish Civil Code enforced in the Philippines
until 1950 contained the principles adopted from
the French Civil Code (Code of Napoleon)
particularly the nationality law principle. Art 16,
par. 1, which applies lex situs rule was adopted
from Art. 10 of Spanish CC while par. 2
represents the system of universal succession.
Art. 17, par. 1 follows lex loci contractus. But
there was no significant jurisprudence on the
subject.
Frederich Carl Von Savigny
Conflict of Laws was included in law curriculum
by UP College of Law in 1911 (no less!). Until
1950s, law teachers predominantly used foreign
law books and decisions by American courts.
19th Century
relied on the
European continental theorists’ concept of
territorial sovereignty and founded conflict of
laws on the principle of comity of nations.
- founder of modern private IL
-application of foreign law was not
due to comity but the resultant
benefits for everyone concerned
- advocated situs theory (seat of
legal relationship): every element
of transaction be governed by the
law of the place with which said
element has the most substantive
connection
In the Bar, it used to be a separate subject along
with PIL but when it was revised, PIL was
included in Pol Law while PRIL was merged with
Civil Law. But, this does not mean that PRIL is a
part of civil law as this mindview tends to limit
the perspective and scope of analysis required for
conflicts problems.
Now, more problems in Conflict have arisen esp.
with Filipinos engaging in foreign business
transactions, and in international air transport
and foreign tort claims and labor contracts for
OFWs.
Pascuale Mancini

Internationalists
there should be a single body of rules
that can solve problems involving a
foreign element
Territorialists
law of the State applies to persons and
things within the State, therefore, no
foreign law is applied.
Branch: only rights vested or acquired
under foreign law are recognized in the
forum but not foreign law itself
1969
2nd Restatement of Conflict of Laws,
adopted by American Law Institute
under Prof. William Reese, proposed
that in the absence of statutory law, law
to be applied in Conflict case, is the law
of the most significant relationship.
-
advanced nationality theory in matters
concerning status, capacity and private
interests of the individual
B.
Modern Developments
III. Sources of Conflict of Laws
Neo-Statutists
followed Italian theory: when 2 or more
independent laws are applicable to a
Conflict problem, the method so devised
determines what law shall prevail
A.
Codes and Statutes
Conflict of Laws (CL) originated in continental
Europe was most laws were codified.
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
Primary sources of law are found in the civil
codes of different countries:
1.
2.
3.
4.
5.
6.
B.
Roman code codified principles of ius
gentium.
Code of Napoleon contained specific rule
on personal law of individual, this was
followed by several codes (Netherlands,
Romania, Italy, Portugal, Spain)
The German civil Code contained many
provisions on Conflict of Laws.
Switzerland also enacted Laws on cases
involving foreign elements.
Greece enacted a Civil Code with CL rules
which became a model in other countries
The Code of Bustamante (in South
America) was patterned after the Code of
Napoleon
International
The Philippines has entered into a number of
treaties and international conventions which deal
with private international law since it became a
Republic.
Some of these treaties/conventions are:
1. Convention on Intl Civil Aviation,
2. Warsaw Convention,
3. Convention on Offenses Committed on Board
Aircraft
4. Convention on the Suppression of Unlawful
5. Acts against Civil Aviation
6. UN Convention COGSA
7. Convention on Consent to Marriage, etc
8. Convention on Traffic of Persons
9. Convention on Elimination of Discrimination
against Women
10. Convention on Political Rights of Women
11. IC on the Suppression of Traffic of Women
and Children
12. Convention on World Intellectual Property
Organization
13. Berne Convention on Protection of Literary
and Artistic Works
14. Paris Convention on Protection of Industrial
Property.
Conflict Laws of the Philippines
Spanish
Civil Code was enforced in the
Philippines on December 7, 1889 until the
Philippine Civil Code’s effectivity on August 30,
1950 which contained the provisions on conflict
of laws of the earlier code.
Spain’s
Code of Commerce, having some
provisions on foreign transactions, were also
enforced in the Philippines on Dec 1, 1888.
One basic source of law is the 1987 Constitution
which contains principles on nationality and
Although many Hague Conventions on Private
International Law were concluded since 1951,
which dealt with issues on:
•
Personal status
•
Patrimonial family status
•
Patrimonial status such as
agency and trusts
The Philippines is a signatory to the Convention
on Recognition of Foreign Judgment on Civil and
Commercial Matters and has ratified the 1993
Convention in Respect of Inter-Country Adoption
only.
comity.
Special statutes were also enacted to govern
cases with foreign elements, to wit:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
Treaties
and
Conventions
Corporation Code
General Banking Act
Foreign Currency System Act
Phil Foreign Law Guarantee Corp
Retail Business Regulation Act
Anti-Dummy Law
Nationalization of Rice and Corn Industry Act
Insurance Code
IP Code
Patent Law
Trademark Law
COGSA
Salvage Law
Public Service Act
Civil Aeronautics Act
Phil Overseas Shipping Act
Investment Incentives Act
Export Incentives Act
RA 7722
C.
Treatises,
Commentaries
Studies of Learned Societies
and
In interpreting statutes and codes involving CL,
courts resort to works of distinguished jurists and
studies of learned societies.
Distinguished writers in continental Europe
include Huber Manreas, Savigny (whose work
was translated into English by Guthrie), and
Weiss.
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
Distinguished American and English writers, on
the other hand, include Beale, Cavers, Cheatham,
Currie, Ehrenzweig, Goodrich, Gussbaum, Story,
Wharton, Cheshire, Graveson.
The American Law Institute published 2 studies
on CL: Restatement of the Conflict of Laws and a
Second Restatement with William Reese as
Reporter.
4)
Is there a statute or doctrine under
which a court otherwise qualified to try
the case may or may not refuse to
entertain it?
A.
Basis of Exercise
Jurisdiction
of
Judicial
Bases of Judicial Jurisdiction (3 groups):
D. Judicial decisions
Decisions of courts are the most important
source of CL rules and form the main bulk of
source of conflict rules.
1)
JD over the person (based on forumdefendant contacts)
2)
JD over the res (based on forumproperty contacts)
3)
JD over the subject matter
According to Graveson: “This branch of law is
more completely judge-made than almost any
other. In its application, judges have to deal with
“All Manner of People” more than any other
branch. The claim of justice for right as a basis
for conflict of laws is supported not only by the
terms of the judicial oath but by judicial dicta in
judgments”.
This is acquired by the voluntary appearance of a
party and his submission to authority.
PART TWO: JURISDICTION AND CHOICE
OF LAW
Over the person of the plaintiff: acquired the
moment he invokes the aid of the court by filing
a suit.
1. Jurisdiction
Person
Jurisdiction may mean either a) judicial or b)
legislative jurisdiction. (This part talks of judicial
jurisdiction)
When he or his lawyer appears in court, he gives
consent to the forum’s exercise of JD over him,
except where the appearance is for the purpose
of protesting the JD over him.
Judicial JD – the power or authority of a court to
try a case, render judgment and execute it in
accordance with law.
A non-resident plaintiff who files a suit is deemed
to consent to the court’s exercise of JD over
subsequent proceedings arising out of his original
cause of action (counterclaims).
Legislative JD – the ability of the state to
promulgate laws and enforce them on all persons
and property within its territory.
JD over the defendant may be had by personal or
substituted service of summons.
4 Major Questions in Analyzing a Conflict of Laws
Problem:
Has the court JD over the person of the
defendant or over his property?
2)
Has the court JD over the subject
matter (“competency”)?
3)
Has the suit been brought in the proper
venue in cases where a foreign element
is involved?
the
Over the person of the defendant: acquired when
he enters his appearance or is served with the
legal process within the state.
IV. Jurisdiction
1)
over
Gemperle vs. Schenker
(1967)
FACTS: Paul Schenker (Swiss citizen and
resident) filed a complaint against Gemperle
through his wife Helen Schenker, for
enforcement of subscription to shares of stock.
Gemperle filed a suit against Paul for
damages, saying that Paul caused allegations
to be published attacking his reputation and
bringing him into public hatred and discredit
5
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
as a businessman. Schenker’s defense: court
has no JD over the person of Paul.
Quasi in rem JD: affects only the interests of
HELD: Jurisdiction was acquired by the lower
court over the person of Paul through service of
summons addressed to him upon Helen, it
appearing from the answer that she is the
representative and attorney-in-fact of her
husband in the civil case.
In these 2 proceedings, all that due process
requires is that the defendant be given adequate
notice and opportunity to be heard (which are
both met by service of summons by publication).
particular persons in that thing (ex. Quieting of
title). (actions against a person in respect of the
res)
Pennoyer vs. Neff
(1878)
FACTS: Neff, a California resident, owned
land in Oregon which was sold under a
Sheriff’s deed to satisfy a money judgment
against him. The service of summons was
made by publication. He is suing for recovery
of said land, alleging that the sale was invalid
for lack of JD of the Oregon court over him.
Jurisdiction:
1) over the person
a) voluntary appearance
b) submission to authority
rule: in substituted service, the premise is that
the defendant is within the territorial JD of the
court
exception: Gemperle case – because Helen is
legally authorized to file a case in behalf of Paul,
she is also authorized to receive summons
2)
HELD: Substituted services by publication, or
in any other authorized form, may be
sufficient to inform parties of the object of the
proceedings taken where property is once
brought under the control of the court by
seizure or some equivalent act to any
proceedings authorized by law upon such
seizure for its condemnation and sale.
over the property
a) in rem – the situs could “bind
the world”
b) quasi in rem
basis of JD: presence of the property within the
territory
3)
But where the entire object of the action is to
determine the personal rights and obligations
of defendants, that is, where the suit is merely
in personam, constructive service in this form
upon a non-resident is ineffectual for any
purpose.
over the subject-matter - WON the court
has competence to hear the case and
render judgment; the court’s JD must be
properly invoked (provided for by
statute)
_______________
2. Jurisdiction
Property
over
the
The important thing to prove is what kind of
action is involved (to determine sufficiency of
form of service to be used)
JD over the property results from:
a)
b)
seizure of the property under a
legal process
International Shoe Co. vs. Washington
(1945)
FACTS: The state of Washington sued
International
Shoe
Co.
(a
Delaware
corporation with principal place of business in
Missouri) to collect the tax laid upon the
exercise of the privilege of employing
salesmen within the state. International Shoe’s
defense is that its activities within the state,
consisting merely of exhibiting samples and
soliciting orders and nothing more, were not
the institution of legal proceedings
wherein the court’s power over the
property is recognized and made
effective
This kind of JD is referred to as in rem JD; the
situs could “bind the world” and not just the
interest of specific persons.
Basis of exercise of JD: the presence of the
property within the territorial JD of the forum.
6
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
Shaffer vs. Heitner
(1977)
FACTS: Heitner, a non-resident of Delaware
with 1 share of stock in the Delaware
corporation Greyhound, sued Greyhound and
its officers for allegedly violating its duties.
Pursuant to the case, Heitner filed a motion for
sequestration of the defendants’ stocks in
Greyhound. The stocks, while not physically
present in Delaware, are considered to be there
in view of it being the place of incorporation.
sufficient to manifest its “presence” there;
hence the state courts had no JD over it.
HELD: The SC of Washington has JD over
International Shoe. Due process requires only
that in order to subject a defendant to a
judgment in personam, if he be not present
within the territory of the forum, he should
have certain minimum contacts with it, such
that the maintenance of the suit does not
offend “traditional notions of fair play and
substantial justice”. (Minimum contacts so
that the suit will not offend traditional
notions of fair play and substantial justice.)
HELD: The Delaware court cannot exercise JD
just because the stocks are statutorily present
in Delaware. The property (stocks) is not the
subject matter of the litigation nor is the
underlying cause of action related to the
property. Also, the facts in CAB does not
demonstrate
that
defendants
have
purposefully availed themselves of the
privilege of conducting activities within the
forum state in a way that would justify
bringing them before a Delaware court.
The demands of due process regarding the
corporation’s “presence” may be met by such
contacts of the corporation with the state of the
forum as to make it reasonable xxx to require the
corporation with defend the particular suit which is
brought there.
Its “presence” can be manifested only by such
activities carried on in its behalf by those who
are authorized to act for it.
In Shaffer, the minimum contacts and
fundamental fairness test should be satisfied
regardless of whether the proceedings are in
rem, quasi in rem or in personam.
Mullane vs. Central Hanover Bank & Trust
Co.
(1950)
FACTS: In an action for judicial settlement of
accounts of Central Hanover Bank as trustee of
a common trust fund, some of the beneficiaries
who are non-residents of NY were notified
only by publication in a local newspaper.
Traditional basis for the exercise of judicial JD is
the state’s physical power over persons and
property within its territory; this is why in in rem
proceedings, it can exercise JD over property
situated in the state regardless of whether it
could otherwise exercise JD over the persons
whose interest would be affected by the decision.
HELD: When notice is a person’s due, process
which is a mere gesture is NOT due process.
The means employed must be such as one
desirous of actually informing the absentee
might reasonably adopt to accomplish it.
Within the limits of practicability, notice must
be such as is reasonably calculated to reach
interested parties.
In the US, there is a shifting trend from theory of
territorial power to considerations of minimum
contacts and fundamental fairness. This approach
demands that there be forum-transaction
contacts that will make it fundamentally fair to
require the defendant to defend a suit in the
forum regardless of his non-resident status.
Distinction, Shaffer and International Shoe: while
International Shoe requires minimum contacts
between the defendant and the forum, Shaffer
demands that minimum contacts exist among the
forum, defendant and the cause of action.
In Mullane, the manner notice was given should
reasonably result in informing the affected
partner; when conditions do not allow such
notice, the form chosen should not substantially
be “less likely to bring home notice than other of
the feasible and customary substitutes.”
The change in the conceptual foundation of JD
from territorial power to fairness does not
significantly affect proceedings in rem, which are
suits where the property itself is the object of the
controversy. The physical presence of the
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
property within the state establishes the state’s
paramount interest in adjudicating a claim over it
and provides the necessary minimum contacts.
has power to enter upon the inquiry, not
whether its conclusion in the course of it is
right or wrong.
Long-Arm Statutes
Long-arm statutes specify the kinds of contacts
upon which JD will be asserted. Some long-arm
statutes broadly authorize courts to assert JD in
any case not inconsistent with the Constitution,
leaving it to the court to define its limitations on
a case-by-case basis.
3. Jurisdiction
over
Subject-matter
“Presence”/Jurisdiction:
1) Traditional Views
a) Pennoyer –
presence
2) Modern Views
conferred
Int’l. Shoe – contact between
the forum and the corporation
(even in the absence of an
actual office, etc.)
b)
Mullane – disregards strict
distinction between in rem and
in personam
c)
It is not enough that a court has a power in
abstract to try and decide the case; it is
necessary that said power be properly invoked
xxx by filing a petition.
Subject-matter JD cannot be
consent of the parties.
physical
a)
the
Subject-matter JD is allocated among the courts
by constitutional and statutory laws, according to
the nature of the controversy, thereby
determining the competence of the court to try
and decide a case.
actual
Shaffer – minimum contacts
between the properties and
forum; fundamental fairness
test
Long-arm statutes: already identify what are the
bases of JD.
by
Jurisdiction and choice of law do
not mean the same thing.
_______________

Idonah Perkins vs. Roxas
(1941)
FACTS: Eugene Perkins filed a complaint
against Benguet Consolidated for the recovery
of declared dividends, but Benguet withheld
payment upon the opposing claim of Idonah
Perkins, wife of Eugene. Idonah sets up a NY
judgment declaring her to be the sole owner of
the Benguet shares and allege that such
judgment is res judicata.
B.
Ways of Dealing with a Conflicts
Problem
The court may deal with a conflicts problem, by:
1)
dismissing the case for lack of
jurisdiction or on the ground of forum
non conveniens
2)
HELD: The CFI has jurisdiction over the case,
despite the presence of the NY judgment.
Whether or not the trial judge in the course of
the proceedings will give validity and efficacy
to the NY judgment set up by Idonah in her
cross-complaint is a question that goes to the
merits of the controversy and relates to the
rights of the parties as between each other, and
not to the jurisdiction of the court. The fear
that the trial judge may render judgment
annulling the final judgment of the NY court is
not a ground to deny the lower court of JD.
The test of JD is whether or not the tribunal
assuming jurisdiction and
either forum or foreign law
applying
1. Dismiss the case
Doctrine of Forum non Conveniens
This doctrine requires the court to dismiss the
case on the ground that the controversy may be
more suitably tried elsewhere. This phrase
literally means “the forum is inconvenient.”
Reasons for applying forum non conveniens:
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
1)
to prevent abuse of the court’s
processes (prevent harassment of
defendant, dissuade a non-resident
plaintiff from choosing the forum
because of larger jury verdicts, etc.)
2)
burdensome on the court or taxpayers
(severe backlog of cases)
3)
local machinery is inadequate to
effectuate a right (no way for court to
secure evidence and attendance of
witnesses)
4)
avoid global forum shopping
In re: Union Carbide
(1986)
FACTS: An industrial disaster in a chemical
plant of Union Carbide in Bhopal, India
caused deaths and injuries to a number of
residents. India enacted the Bhopal Gas Leak
Disaster
Act,
which
authorized
the
government (Union of India) to represent the
victims. The UOI filed a complaint in NY in
behalf of the victims. Union carbide moved to
dismiss on the ground of forum non conveniens.
HELD: Indian courts have JD, not US courts.
Even if UCC has domicile in the US, this loses
significance because it gave its consent to
Indian JD. Moreover, the findings of the court
show that the proof bearing on the issues to be
tried is almost entirely located in India
(principal witnesses and documents, detailed
designs, implementation of plans, safety
precautions, etc.).
English and Scottish courts have applied FNC
when there was “another available and more
appropriate forum, in which the ends of justice
would be better served in view of the interests of
all parties, by eliminating the vexatious or
oppressive character of the pending proceedings
and by removing any unfairness to either party
which would result from trial in the forum seized
of the case.”
Wing On Company vs. Syyap
(1967)
FACTS: Syyap failed pay Wing On, a NYbased partnership, its obligation for a contract
of purchase of clothing material. Wing On
filed an action in the Philippines against
Syyap, but Syyap contends that the trial court
should have declined JD on the ground of
forum non conveniens.
Heine vs. New York Insurance Co.
(1940)
FACTS: An action for recovery on life
insurance policies made and issued in
Germany was filed by German citizens in
Oregon against a NY corporation.
HELD: The Oregon court may refuse to
exercise JD. The courts of Germany and New
York are open and functioning and competent
to take JD of the controversies, and service can
be made upon the defendants in either of such
JDs. To require the defendants to defend the
actions in Oregon would impose upon them
great and unnecessary inconvenience and
expense. The courts of this country are
established and maintained primarily to
determine controversies between its citizens
and those having business there, and
manifestly the court may protect itself against
a flood of litigation over contracts made and to
be performed in a foreign country, where the
parties and witnesses are nonresidents of the
forum, and no reason exists why the liability, if
any, cannot be enforced in the courts of the
country where the cause of action arose, or in
the state where the defendant was organized
and has its principal offices.
HELD: Forum non conveniens is inapplicable.
Unless the balance is strongly in favor of the
defendant, the plaintiff’s choice of forum
should be rarely disturbed, and furthermore,
the consideration of inadequacy to enforce the
judgment, which is one of the important
factors to be considered in the application of
said principle, would precisely constitute a
problem to the plaintiff if the local courts
decline to assume JD on the basis of said
principle, considering that defendant is a
resident of the Philippines.
There is no existing catalogue of circumstances
that will justify sustaining a plea of forum non
conveniens but, in general, both public and
private interests should be weighed.
When the forum is the only state where JD can
be obtained over the defendant and, in
9
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
addition, some relation with the parties exists
or when the forum provides procedural
remedies not available in another state, the
forum court may not resist imposition upon its
JD.
2. Assume Jurisdiction
When the court assumes JD, it may apply forum
law or foreign law, although forum law should be
applied whenever there is good reason to do so
because the forum law is the basic law.
Bank of America vs. CA
(2003)
FACTS: The spouses Litonjua are engaged in
the shipping business; they executed a contract
where Bank of America was made the trustee
of their businesses. But the businesses suffered
losses in the hands of the bank, so the spouses
filed a case for damages for breach of trust and
accounting of revenues in the Philippines.
Bank of America filed a Motion to Dismiss on
the ground of forum non conveniens.
Factors which justify the application of internal
law:
1)
Examples of this are Art. 16 of Civil Code (lex
nationale governs testate and intestate
succession of the person whose succession is
under consideration); Art. 829 of the Civil Code
(revocation of wills outside RP); and Art. 819
(prohibition on joint wills by Filipinos).
HELD: While it is within the discretion of the
trial court to abstain from assuming JD on the
ground of forum non conveniens, it should do so
only after vital facts are established, to
determine whether special circumstances
require the court’s desistance; and the
propriety of dismissing a case based on this
principle of forum non conveniens requires a
factual determination, hence it is more
properly considered a matter of defense.

Example: prohibitory or mandatory
laws of the forum
2)
The proper foreign law was not
properly pleaded and proved
Our courts may not take judicial cognizance of
any foreign law; hence, failure to plead and
prove foreign law leads to the presumption that it
is the same as forum law.
The SC also held in Philsec. Investment vs. CA
that the doctrine of FNC should not be used as
a ground for a motion to dismiss because Sec.
1 Rule 16 of ROC does not include said
doctrine as a ground.

a)
b)
Forum non conveniens:
1)
2)
3)
A specific law of the forum decrees
that internal law should apply
prevent abuse of court processes
burdensome on the court/taxpayers
prevent global forum shopping
Under the Rules of Court, the
foreign law may be proved by:
official publication
certification form the officer with
official custody, under seal, and the
Phil. Embassy must certify that such
officer has official custody, etc.:
that it is the law in force at the time
etc., etc.
Fleumer vs. Hix
(1930)
FACTS: Fleumer, the special administrator of
the estate of Hix, appealed the denial of the
probate of Hix’s will, alleging that since the
will was executed in West Virginia by a
resident therein, West Virginia law should
govern.
 FNC is not something that automatically
applies; its application rests in the
sound discretion of the court
 in Wing On vs. Syyap. Prof.
Pangalangan does not agree with the
holding that “unless the balance is
strongly in favor of the defendant, the
plaintiff’s choice of forum should
rarely be disturbed”, because in the
first place, it was the plaintiff who
chose that forum.
_______________
HELD: The courts of the Philippines are not
authorized to take judicial notice of the laws of
the various States of the American Union. Such
laws must be proved as facts. Here the
requirements of law were not met. There was
10
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
f)
no showing that the book from which an
extract was taken was printed or published
under the authority of the state of West Va. as
provided in the Code of Civil Procedure; nor
was the extract from the law attested by the
certificate of the officer having charge of the
original.
g)
h)
V. Choice of Law
Philippine Trust Co. vs. Bohanan
(1960)
FACTS: The will of Bohanan was admitted to
probate; in the probate he was declared to be a
citizen of Nevada. In the hearing for the
proposed project of partition, Nevada law was
not introduced. Bohanan’s widow questioned
the validity of the will under Philippine law;
however, if Nevada law was to be applied, the
will would be valid.
A.
b)
c)
d)
e)
The factors that justify exercise of
judicial jurisdiction maybe the same
factors used to determine choice of
law
2)
-
if the forum applies its internal law
because it has a real interest, the
outcome of the case will be
foreordained by the forum
plaintiff will choose forum who has real
interest in applying its internal law
3)
generally, forum will apply its
internal law so plaintiff will bring
suit where internal law is favorable
to him
BUT these are 2 diff. concepts. A court may
exercise jurisdiction but apply foreign law or not
exercise jurisdiction but the state’s internal law
will be applied.
As the validity of the testamentary
dispositions are to be governed by the national
law of the testator, the order of the court
approving the project of partition in
accordance with Nevada law must be
affirmed.
a)
The
Correlation
between
Jurisdiction and Choice of Law
1)
HELD: The law of Nevada, being a foreign
law, can only be proved in our courts in the
form and manner provided for by our Rules.
However, it has been found that during the
hearing for the motion of the widow Bohanan
for withdrawal of her share, the foreign law
was introduced in evidence by her counsel. In
addition, the other heirs do not dispute the
provisions of the Nevada law. Under these
circumstances, the pertinent laws of Nevada
can be taken judicial notice of by the court,
without proof of such law having been offered
at the hearing of the project of partition.
3)
The case involves real or personal
property situated in the forum
The application of the foreign law
might endanger the vital interest of
the state
The foreign law is contrary to good
morals
B.
Approaches to Choice of Law
Ideally, the object of all choice of law theories
must be justice and predictability.
1. Traditional Approaches
-
The case falls under any of the
exceptions to the application of
foreign law
theories that emphasize
convenience and uniformity
a.
-
The foreign law is contrary to an
important public policy of the forum
The foreign law is penal in nature
The foreign law is procedural in
nature
The foreign law purely fiscal or
administrative in nature
The application of the foreign law
will work undeniable injustice to the
citizens of the forum
-
-
11
simplicity,
vested rights theory
advanced
by
Prof.
Beale
(1st
Restatement)
an act done in a foreign jurisdiction
gives rise to a right if the laws of that
state provides so. The right vests and
he can bring suit in any forum he
chooses.
The forum refers law of the place of the
“last act” necessary to complete the
cause of action. (place of injury)
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
-
If place of the last act creates no legal
right, although forum court creates such
right if act is done within its territory, it
will not enforce the right.
-
-
Gray vs. Gray
(1934)
FACTS: Wife (W) sued husband (H) for
damages in New Hampshire where they are
residents. Accident happened in Maine. Maine
bars suit between spouses.
power of a state to regulate within its
territory has no limitation except as
imposed by its own positive law
criticism: appeals to narrow-mined who
favors an exaggerated local policy bec a
sovereign can do as they please,
depreciating the practical and equitable
considerations that should control the
case.
c.
Caver’s
Preference
HELD: The effect of the prohibition in Maine is
to divest the W of any cause of action against
H. If there is a conflict between lex fori and lex
loci, lex loci governs in torts in respect to the
legal effect and incidents of the act.
-
-
The status as spouses is determined by New
Hampshire law but the incidents of that status
is governed by the law of the place of the
transaction (Maine).
-
Alabama Great Southern Railroad vs. Carroll
(1892)
FACTS: Carroll is an employee of Alabama
RR. Both are residents of Alabama. C was
injured in the course of work bec. of
negligence of co-EE in Mississippi. Mississippi
bars recovery. Alabama makes employer
liable. Suit is filed in Alabama.
Principles
of
choice-of-law decisions should be made
with
reference
to
principles
of
preference which are conceived to
provide a fair accommodation of
conflicting state policies and afford fair
treatment to the parties.
Caver’s principles have a territorialist
bias; it looks to the place where the
significant events occurred or where the
legal relationship is centered.
Court should:
1) scrutinize the event/ transaction
giving rise to the issue
2) compare carefully the proffered rule
of law & the result of its application
with the rule of the forum & its
effect
3) appraise these results from the
standpoint of justice between the
litigants or of considerations of
social policy
2. Modern Approaches
HELD: There can be no recovery in one sate
for injuries to the person sustained in another
unless the infliction of the injuries is actionable
under the law of the state in which the injuries
were received.
Although it is claimed that the negligent
conduct was done in Alabama, the injury
sustained creates the cause of action and not
the negligence. (law of the place of injury)
a. Place of the Most Significant
Relationship
-identifies a plurality of factors:
i.
needs of the interstate and intl
system
ii.
relevant
policies
of
the
concerned states
iii.
relevant policies of other
interested states
iv.
protection
of
justified
expectations of the parties
v.
basic policies underlying the
particular field of law
vi.
certainty, predictability and
uniformity of result
vii.
ease in the determination and
application of law to be applied
Criticisms to the Approach: failure to resolve
conflicts cases with considerations of policy and
fairness.
b.
-
Cook’s Local Law Theory
treat conflicts cases as a purely
domestic case that does not involve a
foreign element
Examples of application:
12
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
i.
ii.
torts – place of injury, place of
tortious conduct, domicile,
residence or nationality of
parties,
place
where
relationship is entered
contracts – choice of law of the
parties, place of contracting,
place of performance, domicile,
residence, nationailty, place of
incorporation and place of
business
HELD: Suit is barred by the prior support
agreement. Court found that Illinois has the
most significant contacts. It is what the parties
intended to apply, the place of performance,
the place of business of B & the agents and the
place where support are being made
compared to NY whose contacts are of less
weight & significance. (place of liaison &
residence of H & child)
Criticisms to approach: no standard to evaluate
the relative significance/importance of each
contact such that court may use approach to
support any preconceived result without
explaining its real motives.
Auten vs. Auten
(1954)
FACTS: Spouses were married and lived in
England. H left and went to NY. Spouses
executed support agreement in NY. H failed to
pay support. W sued H for legal separation. W
sued in NY to enforce agreement. H claimed
that legal separation suit, extinguished liability
under NY law.
b.
-
HELD: English law should govern the parties.
England has all the truly significant contacts
while the nexus to NY is entirely fortuitous.
-
Interest Analysis
resolve conflicts cases by looking at the
policy behind the laws of the involved
states and the interest each state has in
applying its own law.
Tasks of the court:
1st: determine whether the case involves
a true, false or apparent conflict (false
conflict: only one state has an actual
interest in having the law applied and
the failure to apply the other state law
will not impair its policy)
England is the seat of marital domicile and the
place where W & children were to be, it has
the greatest concern in defining and regulating
the rights and duties existing under the
agreement and the circumstances that affect it.
Whereas NY is only the place of the agreement
and where the trustee, where moneys will be
paid for the account the W & children, had his
office.
2nd: if there is apparent or true conflict,
court should take a second look on the
policies and interests of the states. If
only one has a real interest, the other is
insubstantial, then there is false conflict.
If both have real interests in applying
their law, then the apparent conflict is a
true conflict.
In applying the “grouping of contacts” theory,
courts, instead of regarding as conclusive the
intention of the parties or the place of making
or performance, lay emphasis rather on the
law of the place which has the most significant
contacts with the matter in dispute.
Babcock vs. Jackson
(1963)
FACTS: Babcock & Jackson, NY residents, met
a car accident in Ontario thru J’s fault. B sued J
in NY for damages. Ontario bars recovery
under a guest statute. NY does not have a
similar rule.
Haag vs. Barnes
(1961)
FACTS: Barnes & Haag had an affair in NY. H
became pregnant. After giving birth, H went to
Chicago. Parties entered into a support
agreement in Chicago. The agreement
contained a choice of law clause (Illinois). H &
child went back to live in NY. H filed support
action in NY against B. Under NY law,
agreement is not binding. B’s defense: Illinois
agreement bars suit.
HELD: B should be allowed to recover. NY
had a greater & more direct interest than
Ontario. NY’s policy is to afford compensation
to a guest against tortfeasor host while
Ontario’s policy is to prevent fraudulent
collusion to the prejudice of Ontario
defendants-insurance
companies.
Thus,
Ontario had no interest in denying a remedy
to a NY guest against a NY host.
13
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
1)
2)
The rule on tort claim is:
Where the issue involves standard of conduct,
law of the place of the tort is controlling, but as
to other issues, court must apply the law of the
state which has the strongest interest in the
resolution of the issue presented.
-
Criticisms to Approach: not all state legislatures
publish reports that explain the background and
purpose of the laws, thus court is left to
speculate on the purpose of the law and not all
reflected policy or had a purpose other than to
decide cases.

-
Traditional approaches do not consider policy; all
modern approaches look at policy.
______________
Pangalangan on Interest analysis: why
consider what the state wants when
interests of individuals are in issue?
c.
-
-
predictability of results
maintenance of interstate and int’l
order
3) simplification of the judicial task
4) application of the better rule of
law
5) advancement
of
the
forum’s
governmental interest
court should prefer a law that make
good socioeconomic sense and are
sound in view of present day conditions
Criticism: no principled or objective
standard to determine “better rule”.
VI. The Problem of Characterization
Comparative Impairment
A.
subordination of the state objective
which would be least impaired
How? Court should weigh conflicting
interests and apply the law of the state
whose interest would be more impaired
if its laws were not followed
Characterization and the SingleAspect Method
Single-aspect method: choice of law theories
traditionally concentrated on one element of a
situation to connect case to particular legal
community.
Goal: simplicity, convenience, uniformity
Multi-aspect method: modern approach by which
d.
-
-
-
all important
analyzed.
Trautman’s Functional Analysis
this approach looks into:
1) the general policies of the state
beyond
those
reflected
in
substantive law
2) policies and values reflecting
effective
and
harmonious
relationship between states
ex. Reciprocity, advancement of
multistate
activity,
protecting
justifiable
expectations,
evenhandedness and effectiveness.
after determining these policies, court
should then weigh the relative strength
of a state policy
HOW? Court should consider whether
the law of a state reflects an “emerging”
or “regressing” policy.
e.
factors
(non/territorial)
are
The applicable law is arrived at by elaborating
policies & purposes underlying rules, and the
needs of international intercourse.
Goal: just resolution of case
The Philippines follows single-aspect method. Our
conflicts rules are mostly found in the Civil Code.
Art 15: Laws relating to family rights & duties, or
to the status, condition and legal capacity of
persons are binding upon citizens of the
Philippines, even though living abroad.
Art 16: Real property as well as personal
property is subject to the law of the country
where it is situated.
Leflar’s
Choice-Influencing
Considerations
However, intestate and testamentary succession,
both with respect to the order of succession and
to the amount of successional rights and to the
intrinsic validity of testamentary provisions shall
5 major choice-influencing considerations
14
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
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. (AOI)
previous to husband, community property
belongs absolutely to husband.
HELD: California Civil Code will not apply.
The law of the place where land is situated
governs its descent, alienation &transfer & for
the effect & construction of wills & other
conveyances.
Art 17: The forms and solemnities of contracts,
wills, and other public instruments shall be
governed by the laws of the country in which
they are executed.
As mandated by Philippine law, the lands
were acquired as community property in the
conjugal partnership. The wife was vested
with a title equal to that of her husband. Upon
her death, if there are no obligations of the
decedent, her share in the conjugal property is
transmitted to the heirs by succession.
When the acts referred to are executed before
the diplomatic or consular officials of the Republic
of the Philippines in a foreign country, the
solemnities established by Philippine laws shall be
observed in their execution.
Prohibitive laws concerning persons, their acts or
property, and those which have for their object
public order, public policy and good customs shall
not be rendered ineffective by laws or judgments
promulgated,
or
by
determinations
or
conventions agreed upon in a foreign country.
Though the court was silent on the matter of
characterization, it had the task of categorizing
the issue as one involving:
b) property to be governed by lex
situs, or
c) succession to be governed by
decedent’s national law (California)
The rules specify geographical location in
accordance with traditional approach. The
problem with this: inherent rigidity, unjust
decisions.
Solution:
devices
Characterization,
Renvoi,
Characterization problems are considered a
threat to traditional choice-of-law theories whose
aims are uniformity & predictability of results.
Escape
Problems:
Characterization: the process by which a court
assigns a disputed question to an area in
substantive law. It is a part of legal analysis and
a pervasive problem since at least 2 jurisdictions
with divergent laws are involved.
A) C, is adopted in the Philippines by a former
Filipino citizen and moves to the US with her
adoptive mother, M. By M’s laws, C will not be an
heir. Will C be entitled to an intestate share in
M’s estate?
Two Types of Characterization:
The court would have to decide whether it is a Q
relating to
1. Legality & effects of adoption: law of
state where legal relationship of adoption was
established or where the adoption decree was
granted shall govern; or
1. Subject-matter
Characterization
This calls for classification of a factual situation
into a legal category. It is significant in a singleaspect method because the legal category to
which an issue is assigned determines governing
law
2. Succession: adopter’s personal law
shall prevail
B) Principal authorizes a person to act as his
agent in another country. Agent commits a
negligent act. What law will determine the
principal’s liability?
It depends on the court’s characterization of
the case as:
Gibbs vs. Gov’t. of PI
(1933)
FACTS: Spouses Allison & Eva were residents
& citizens of California owning parcels of land
in Manila. Eva died. Allison, as administrator
files petition to declare lands in his favor
pursuant to California law. California Civil
Code provides that upon wife’s death
1. Contractual: law of the place where
the contract of agency was entered into; or
15
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
2. Tortious: law of the place where
tortuous conduct or injury occurred
HELD: Survival statutes are procedural. Thus,
California (forum) law applies. Forum law
governs if issue is procedural. Under
California Civil Code the action out of a wrong
resulting to a physical injury shall not abate
because of the death of the wrongdoer.
Plaintiff’s cause of action survives Pullen’s
death.
2. Substance-Procedure
Dichotomy
Directs the court to the extent it will apply
foreign law.
If issue substantive: court may apply foreign law
If issue procedural: follow forum law
The reaction to Grant was generally negative. It
was criticized as being based on an erroneous
characterization
greatly
influenced
by
“sympathy”.
Why apply forum law to matters of procedure?
One of the main goals of a rational system of CL
rules: Rights & Duties of parties arising from a
legal situation shall not be substantially varied
because the forum in w/c action is brought.
Other view: Correct result but arrived at using
dubious method.
Currie: The court availed of one of several escape
devices - characterization. It characterized the
problem differently, such producing the result
previously recognized as the sound result.
Courts of all civilized states now seek to protect
parties, by referring to foreign law, against a
substantial change of position because of
fortuitous circumstance that suit was brought in
that forum.
This device is not ideal. It is better if courts could
expressly state the considerations that helped
them determine the results and indicate clearly
how these considerations will be used in other
cases.
The means provided for compulsion, or the
limitation upon compulsion are in most cases of
equal practical importance to the declaration of
the validity of the plaintiff’s claim.
No objective standard has been suggested. An
attempt to explain the court decision in terms of
“demands of justice” or “social policy” would
create uncertainty & arouse criticism.
Such all inclusive reference to foreign law is
never made. It would be too burdensome on the
part of the forum and administration of justice
will be delayed. Thus, it is necessary to limit the
scope of reference to foreign law.
Procedural issues are governed by forum law so
that the court will not be unduly burdened by
task of studying peculiarities of another legal
system. It must be noted, though, that some
matters cannot be clearly defined as procedural
or substantive.
This limitation excludes phases of the case which
make the administration of foreign law
inconvenient or violative of local policy. In such
instances, local rules of the forum are applied &
are classified as matters of procedure.
Two Issues whose classification (as procedural or
substantive) is debatable:
Grant vs. Mcauliffe
(1953)
FACTS: Plaintiffs, Grant, et al., (California
residents) were injured in Arizona when their
vehicle collided with that of Pullen’s
(California resident), who died of accident.
The suit against estate of Pullen filed by Grant
to recover damages was dismissed because
under Arizona law- “a tort action not
commenced before the death of the tortfeasor
must be abated”. But under California law, an
action for tort survives the death of tortfeasor.
1) Statute of Frauds
It is considered substantive if words of law relate
to forbidding the creation of obligation. One that
forbids the enforcement of the obligation is
characterized as procedural
Marie vs. Garrison: Defendant maintains that the
NY Statute of Frauds affects the remedy upon a
contract w/in its terms—a rule prescribing
evidence & deemed a rule of procedure. Garrison
claims that rules of the forum must be followed.
Marie claims that NY law was constructed as a
16
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
rule of substance going into existence
contract; determined by lex loci contractus.
of
period for claims arising out of a contract of
employment is one year.
Issue: Whether a contract declared ‘void’ by a
stature still subsists as a contract w/ the only
effect of depriving party of a remedy or mere
evidence.
Held: It was a word of substance because the
statute provided that the contract of sale of any
interest in land shall be void unless it was in
writing ex contrario to a law stating that ‘no
action shall be brought’ of the requirement was
not complied with.
HELD: Even though a law on prescription may
be considered as substantial or procedural, its
characterization as either becomes irrelevant
when the country of the forum has a
“borrowing statute.” Said statute has the
practical effect of treating the foreign statute of
limitation as one of substance. Under the ROC
of the Philippines, it is provided that “if by the
laws of the state or country where the cause of
action arose, the action is barred, it is also
barred in the Philippines.” The Bahrain law on
prescription should apply. However, it cannot
be enforced as it would contravene the public
policy on the protection to labor. Philippine
law will then be applied.
2) Statutes of Limitations (SL) & Borrowing
Statutes
Statutes of limitations are traditionally classified
as ‘procedural’ because they only barred the legal
remedy w/out impairing the substantive right
involved.
B. Depecage
Thus, a suit can still be maintained in another JD
w/c has a longer SL. However, certain SL’s have
been classified as substantive for conflicts
purposes if providing a shorter period for certain
claim types falling w/in wider class covered by
the general SL.
From depecer, which means “to dissect.”
Different aspects of a case involving a foreign
element may be governed by different systems of
laws.
Von Mehren & Trautman: A man dies intestate
domiciled in state A & w/ movable properties in
State B.
Specificity test: to determine whether an SL is
substantive or procedural.
An SL of a foreign country is treated as
“substantive” when limitation was directed to
newly created liability so specifically as to
warrant saying that it qualified the right
How will the man’s estate be divided?
State A conflict rules refer to laws of domicile.
Intestate law of State B gives the widow a
definite share in the estate of deceased. But the
determination of WON the woman claiming the
share is a “wife” is referred to family law, not
laws on succession.
Borrowing statutes
Purpose: Many states, the
Philippines among
others, have passed borrowing statutes to
eliminate forum-shopping.
Issues of law governing movable properties &
successional rights of spouse are of primary
importance, embodying substance of claim.
Validity of marriage ‘affects solution because it
answers a preliminary or incidental Q.
However, in the case of Cadalin, the court said
that to enforce the borrowed statute would
contravene public policy on protection of labor.
The presence of an incidental Q is one instance
which calls for the employment of depecage.
Cadalin vs. POEA Administrator
(1994)
FACTS: Cadalin et al. instituted a class suit
with the POEA for money claims arising from
their recruitment by AIBC and BRII for
pretermination of employment contracts.
Under Bahrain law where some of the
complainants were deployed, the prescriptive
Merits of Depecage:
This technique allows other relevant interests of
parties to be addressed. Thus, it permits courts
to arrive at a functionally sound result w/out
rejecting the methodology of the traditional
approach. This nuanced single-aspect method
employs depecage by choice.
17
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
g.
Haumschild vs. Continental Casualty
(1959)
FACTS: Haumschild and Gleason were
married in Wisconsin, their domicile.
Haumschild was injured in California while
riding a motor truck driven by Gleason. Their
marriage was later annulled. An action for
recovery of damages was filed by Haumschild
in Wisconsin. Continental alleges that under
California law, a spouse is immune from suit
by the other spouse.
The consideration of any elements & acceptance
by courts of depecage help ease restrictions of
single aspect method.
Courts not compelled to apply entire law to all
aspects of case…that might produce egregious
results. Cutting up the case issue by issue is fair
& reasonable.
But even if a useful tool in modern choice-of-law
analysis, the express reference to depecage in
case law, both in US & the Phil still uncommon.
HELD: The law of the domicile ought to be
applied in any issue of incapacity to sue based
upon family relationship. The policy reason
for denying the capacity to sue (preventing
family discord) more properly lies within the
sphere of family law, where domicile usually
controls the law to be applied, than it does tort
law, where the place of the injury generally
determines the substantive law which will
govern.
VII. The Problem of Renvoi
A.
presented is referred by the conflict of laws rules
of the forum to a foreign state, the conflict of
laws rule of which, in turn, refers the matter to
the law of the forum or a third state.
Remission: reference is made back to the law of
the forum
Transmission: reference to a third state
Renvoi has been employed in cases where the
The 1969 Restatement 2d adopted depecage &
set out a number of factors to be considered in
choosing the applicable law:
needs of
system
interstate
&
b.
relevant policies of the forum
c.
relevant policies of other interested
states & the relative interests of those
states in the determination of a
particular issue
domiciliary and nationality laws are applied to the
same individual in issues involving succession,
domestic relations and real properties.
international
d.
protection of the justified expectations
of the parties
e.
the basic policies
particular field of law
f.
certainty, predictability, uniformity of
results, and
underlying
Definition
Renvoi – a procedure whereby a jural matter
The court decided that the law of the place of
accident (California) governed the issue of
negligence while Wisconsin law governed the
issue
of
interspousal
immunity.
The
characterization process was taken one step
further by not limiting the classification to the
case itself but likewise, to the issue arising from
the case.
a.
ease in determination & application of
law to be applied
Renvoi:
State A
(RP)
State B
Art. 16
CC
Internal law
Conflict-oflaws rule
the
B.
18
Various ways of dealing with the
Problem of Renvoi
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
4 Ways of Dealing with the Problem of Renvoi
(Prof. Griswold):
1)
2)
Disadvantage to renvoi: if both courts follow the
same theory, there would be no end to the case
since the courts would be referring it back to
each other. It gives rise to situations that have
been invariably described as resembling
“revolving doors,” a “game of lawn tennis,” a
“logical cabinet of mirrors” or a “circulus
if the conflicts rules of the forum court
refer the case to the law of another
state, it is deemed to mean only the
“internal” law of that state (internal law:
that which would be applied to a
domestic case that has no conflict-oflaws complications) – rejects the renvoi
inextricabilis.”
the court may accept the renvoi and
refer not just to another state’s
“internal” law but to the “whole” law
(includes choice-of-law rules applicable
in multi-state cases)
Annesley, Davidson vs. Annesley
(1926)
FACTS: The testatrix, a British subject, was a
domiciliary of France according to British law,
but not according to French law. She made a
will in English form. In the will she disposed
of all her property in favor of her daughter,
and stipulated that she had no intention of
abandoning her domicile in England. If she
was a domiciliary of France, she could only
dispose of 1/3 of her personal property.
Aznar vs. Garcia
(1963)
FACTS: The will of Edward Christensen, a
domiciliary of the Philippines, was admitted to
probate, and a project of partition was
proposed. Edward’s illegitimate child opposed
the project of partition on the ground that the
distribution of the estate should be governed
by Philippine law. The lower court found that
Edward was a US citizen; hence the
successional rights and intrinsic validity of the
will should be governed by California.
HELD: The domicile of the testatrix at the time
of her death was French. Applying English
law, the fact of her residence in France coupled
with animus manendi showed her intention to
abandon her English domicile even if she had
not complied with the formalities required
under French law to become a French
domicile.
HELD: Philippine law should apply. Art. 16 of
the Phil. Civil Code provide that the national
law of the decedent governs the validity of his
testamentary dispositions. Such national law
means the law on conflict of laws of the
California code, which authorizes the
reference or return of the question to the law
of the testator’s domicile. The conflict of laws
rule in California precisely refers back the case,
when a decedent is not domiciled in
California, to the law of his domicile (the
Philippines in the CAB). The Phil. court must
apply its own law as directed in the conflict of
laws rule of the state of the decedent.
3)
by desistance or mutual disclaimer of JD
– the same result as the acceptance of
the renvoi doctrine but the process used
by the forum court is to desist applying
the foreign law.
4)
“foreign court” theory – the forum court
would assume the same position the
foreign court would take were it litigated
in the foreign state
According to French municipal law, the law
applicable in the case of a foreigner not legally
domiciled in France is the law of that person’s
nationality, which is British. But British law
refers the question back to French law, the law
of the domicile. And according to French law,
the French courts, in administering the
movable property of a deceased foreigner
who, according to the law of his country is
domiciled in France, and whose property
must, according to that law, be applied in
accordance with the law of the country in
which he was domiciled, will apply French
municipal law, even if he had not complied
with the French requirements for acquisition
of domicile.
Options which the forum court may do:
a) accept the renvoi (apply forum law)
b) reject the renvoi (apply the internal law
of the foreign state)
c) desistance/mutual disclaimer
19
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
Objections to Renvoi
d)
-
“foreign court” theory
the difficulty with the foreign court
theory is that the forum court will have
to anticipate or guess how the foreign
court will act.
 Renvoi is optional, based on the
discretion of the court and the facts of
the case.
_______________
C.
Critics:
1)
Usefulness of Renvoi
Renvoi has been used to avoid unjust results.
renvoi would place the court in a
“perpetually-enclosed circle form which
it would never emerge and that it would
never find a suitable body of substantive
rules to apply to a particular case.” The
theoretical problem presented is that
renvoi is workable only if one of the
states rejects it and that it achieves
harmony of decisions only if the states
concerned do not agree on applying it
the same way.
Griswold: the objection is based on a false
premise; as long as remission is to the state’s
internal law alone there will be a stop to the
“endless chain of reference.”
University of Chicago vs. Dater
(1936)
FACTS: Mr. and Mrs. Price executed a trust
deed and promissory notes in favor of
University of Chicago, for a loan secured by
Mr. Price and Mr. Dater. They were residents
of Michigan; the mortgage and the notes were
also signed there and sent by mail to Chicago.
In a suit filed by the University in Michigan
against the spouses Dater and Mrs. Price (Mr.
Price having died earlier), the court ruled that
there was no cause of action against Mrs. Price,
because under Michigan law a married
woman has no capacity to enter into an
obligation such as this, hence the note and
trust deed were void. The question is which
law should be applied, Michigan or Illinois
law.
2)
Courts may be unnecessarily burdened
with the task of identifying the choiceof-law rules of another state.
Pangalangan: from a practical perspective, the
forum court will not use renvoi if, in the first
place, it cannot ascertain what the conflict-of-law
rules of the foreign state are.
Inapplicability of Renvoi in a False Conflict
US Restatement (Second) of Conflict of Laws:
renvoi to be used when there is a disinterested
forum, to ensure that only the laws advancing
the policies of the interested states will be
applied. If the choice-of-law rules of the state to
which reference is made refers the case back to
the forum state, the court may use this situation
to determine if both states have an interest in
having their laws applied or if there is merely a
false conflict.
HELD: Under the law of Illinois, the capacity
of Mrs. Price is governed by Michigan law (as
held in the similar case of Burr vs. Beckler,
where the court said that since the contract
was completed in Florida, that state governed
her capacity to contract). In this case, the
contract was complete in Michigan, and it
governs her capacity to contract. Since she was
not competent to contract under Michigan law,
her note and trust deed were void.
Pfau vs. Trent Aluminum Co.
(1970)
FACTS: Trent (a New Jersey domiciliary)
agreed to drive Pfau (a Connecticut
domiciliary) to Missouri. While in Iowa, they
had a vehicular accident causing injuries to
Pfau. Pfau filed suit in New Jersey against
Trent Aluminum Co. (registered owner of the
car) for the damages he sustained while a
passenger in Trent’s car. The defense of Trent
Aluminum was that Iowa law is applicable,
which provides that the host-driver is not
liable to his passenger-guest for ordinary
negligence.
In the Dater decision, Michigan protected the
interest of a Michigan wife especially since Illinois
disclaimed any desire in applying its law. Also,
uniformity of results was promoted in spite of
discrepancies in the choice-of-law rules of the
involved states. With renvoi, the Dater decision
was made dependent on substantive law and not
on the incidental law of the forum.
20
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
In US, courts are allowed to take judicial
knowledge of the law of sister states.
HELD: Connecticut and New Jersey law both
allow passenger-guest recovery. It appears
that Connecticut’s substantive law allowing a
guest to recover form his host’s ordinary
negligence would give it a significant interest
in having that law applied to this case. Since
Iowa has no interest in this litigation, and since
the substantive laws of Connecticut and New
Jersey are the same, this case presents a false
conflict and the Connecticut plaintiff should
have the right to maintain an action for
ordinary negligence in New Jersey.
B.
Foreign law may be proved by presenting either
of the ff:
1.
2.
Bellis vs. Bellis
(1968)
FACTS: The probate of the will of Texas citizen
and domiciliary Amos Bellis was opposed by
his 3 illegitimate children in the Philippines for
depriving them of their compulsory legitime.
However, the trial court ruled that under Art.
16 of the Phil. Civil Code, the national law of
the decedent is to be applied in testamentary
succession. The law of Texas did not provide
for legitimes.
an official publication of the law
a copy of the law attested by the officer
having legal custody of the record or by
his deputy. If the record is not kept in
the Philippines, it must be accompanied
with a certificate that such officer has
the custody (by the consular officer of
the Phil embassy in said state and
authenticated by his seal of office)
Proof of documents executed abroad: any public
document executed abroad to be used in the
Phils must be duly authenticated by the Phil.
consul attaching his consular seal
Depositions of non-residents in a foreign country:
they may be taken—
HELD: Texas law should apply. The decedent
was both a national and a domiciliary of Texas,
so that even assuming Texas has a conflict of
law rule providing that the law of the domicile
should govern, the rule would not result in a
reference back (renvoi) to Philippine law, but
would still refer to Texas law.
1)
on notice before a secretary of embassy
or legation, consul general, consul, viceconsul, or consular agent of the Phils.
2)
before such person or officer as may be
appointed by commission or under
letters rogatory.
3)
before such person which the parties
have stipulated in writing
PCIB vs. Escolin
(1974)
FACTS: Case bet. the administrators of the
estates of Hodges spouses. W’s administrator
sought the application of Texas law. H’s
administrator also used the Texas law but
arrived at a different conclusion.
VIII. Notice and Proof of Foreign Law
A.
Proof of Foreign Law
Extent of Judicial Notice
It is the party whose cause of action or defense
depended upon the foreign law who has the
burden of proving the foreign law.
HELD: Case remanded for parties to present
proof of the applicable Texas law. The
question of what are the applicable laws of
Texas is one of fact and not of law. Foreign
laws may not be taken judicial notice of &
have to be proven like any other fact in
dispute between the parties in any proceeding
with the rare exception in instances when the
laws are within the actual knowledge of the
courts, such as when:
Foreign law is treated as a question of fact that
should be properly pleaded and proved
In the Phils., judicial notice may be taken of a
foreign law with which the court is evidently
familiar. (Delgado vs. Republic) Such familiarity
may be because the law is generally known such
as American or Spanish Law from which Phil law
was derived or the judge had previously ruled
upon it in other cases.
21
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
a.
b.
they are well and generally
known
they have been actually ruled
upon in other cases before it and
none of the parties claim
otherwise
HELD: Because of failure to prove the foreign
law, plaintiff loses.
Plaintiff has the burden of proving the law of
Saudi Arabia from which he shall base his
claim because under NewYork law, where
action was instituted, lex loci delicti is the
substantive la applied in tort cases.
A court abuses its discretion under the New York
Civil Practice Act if it takes judicial notice of the
foreign law when it is not pleaded esp. when the
party who had the burden to prove the same has not
assisted the court in judicially learning it.
In Re Estate of Johnson
(1918)
FACTS: In the hearing for the probate of the
will of J, alleged to be made in accordance
with the laws of Illinois, TC judge took judicial
notice of the said foreign law.

HELD: Trial court judge erred in taking
judicial notice.



The judge cannot take judicial notice of the
acts of the Legislative Department of US
particularly the various laws of the
American states.
Likewise, Phil. courts cannot take judicial
notice of the same under “matters of
public knowledge”.
The proper rule is to require proof of the
Statute whenever it is determinative of the
issue/s in Phil. courts.
Second approach: apply forum law, conclude that
parties acquiesce to its application.
Leary vs. Gledhill
(1951)
FACTS: Leary instituted this action in New
Jersey to recover the loan contracted in France
against G. G moved to dismiss on the ground
that L’s proof were insufficient as there is no
pleading or proof of the law of France where
the transaction occurred.
Effects of Failure to Plead and Prove Foreign Law
Forum court may:
1. dismiss the case for inability to establish
cause of action
2.
apply law of the forum (courts conclude that
by failing to adduce proof, parties acquiesce
to the application of the forum law since it is
the basic law)
3.
assume foreign law is the same as law of the
forum (processual presumption)
The applicable tort principles necessary to
establish plaintiff’s claim are not
rudimentary. In countries where common
law does not prevail, these principles may
not exist or maybe vastly different.
HELD: L can recover despite failure to prove
French law. Altho the court recognizes the fact
that France adopts civil law rather than
common law principles, the cause of action of
L may still be pursued, as there are 3
presumptions that the court may apply in the
CAB. These are:
1, French law is the same as law of the
forum
2. French law, like all civilized countries,
recognizes
certain
fundamental
principles (taking of a loan creates
obligation to repay)
3. By failing to prove French law, parties
acquiesce to apply forum law
The third presumption does not present any
difficulties for it to be universally applied
regardless of the nature of the controversy.
This is more favored by the authorities and has
been followed in Sturm v. Sturm.
In CAB, Rights of the parties are to be
determined by New Jersey laws which permit
recovery on the facts proven.
First approach: Dismiss the case
Walton vs. Arabian Oil Co.
(1956)
FACTS: Walton, US citizen, was injured in
Saudi Arabia. His complaint did not allege the
Saudi Arabia law nor did he proved the same
during the trial. TC ruled in favor of defendant
as he did not take judicial notice of S. Arabian
law.
22
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
The will was allegedly recorded and probated
by a district court in Amoy.
Zalamea vs. CA
(1993)
FACTS: Zalamea filed action for damages
against TWA. RTC awarded actual and moral
damages. CA denied award of moral
damages because there was no fining of bad
faith and because overbooking was an
allowed practice in US airlines.
HELD: Will cannot be allowed. Silvino was
unable to adduce the necessary proof under
Secs. 1-3 of Rule 78 in order to probate the will
in the Philippines, specifically:
a. the fact that the municipal court of Amoy
is a probate court
b. the procedural law of China regarding
probate of wills
c. the legal requirements for the execution of
a valid will
HELD: CA was wrong. The US law or
regulation authorizing overbooking was not
proved in accordance with our laws.
 TWA relied solely on the statement of its
agent that the Code of Fed. Regulations of
Civil
Aeronautics
Board
allows
overbooking.
 No official publication of the said code
was presented as evidence.
Although there were unverified answers of the
Consul General of China, his answers are
inadmissible because:
a. he does not qualify as an expert on
Chinese law on probate procedure (usu.
attend to trade matters), and
b. if admitted, the adverse party will be
deprived of their right to cross-examine
him
Thus, in the absence of proof, it may be
presumed that the probate laws of China are
the same as ours and the will in question does
not comply with our probate laws.
Written law maybe evidenced by an official
publication thereof or by a copy attested by the
officer having legal custody of the record or by
his deputy, accompanied by a certificate (made
by a Phil. consular officer and authenticated by
his seal of office) that such officer has legal
custody.
Third approach: processual presumption
CIR vs. Fisher
(1961)
FACTS: Spouses Stevenson are British subjects.
H dies leaving W as sole heir. CIR assessed
estate tax on the whole properties of the
spouses because English law does not
recognize conjugal partnership.
Miciano vs. Brimo
(1924)
FACTS: Action for partition of estate of Brimo,
a Turkish citizen. Oppositor claims that
proposed partition is contrary to Turkish law
but he failed to prove & present evidence on
the said Turkish law.
HELD: English law cannot be applied. The
pertinent English law that allegedly vests in
husband full ownership of properties acquired
during the marriage was not proved by CIR
(petitioner). In the absence of proof, the Court
is justified in indulging in “processual
presumption” in presuming that the law of
England on the matter is the same as our law.
HELD: In the absence of evidence on foreign
law, they are to be presumed the same as those
of the Phils. Oppositor, himself, acknowledges
that the foreign law was not proven when he
asked for opportunity to present evidence. He
was granted ample opportunity to present
competent evidence and there was no GAOD
when the court refused to grant him another
opportunity.
Board of Commissioners vs. CID
(1991)
FACTS: Board sought the deportation of G
who is alleged to be an alien. Marriages of G’s
grandfather and of G’s father all performed in
China were not properly proven.
Suntay vs. Suntay
(1952)
FACTS: A will executed in Amoy by the
deceased is sought to be allowed in the Phils.
23
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
1.
Only self-serving testimonies were allegedly
presented. Also, marriages are claimed to be
void according to Chinese law.
“public policy”: no subject or citizen can lawfully
commit any act which has a tendency to be
injurious to the public or against the public good.
HELD: In the absence of evidence to the
contrary, foreign laws are presumed to be the
same as those of the Phils. In CAB, there being
no proof of Chinese law on marriage, the
presumption arises. The Phils. adhere to the
presumption of validity of marriage (A.220
FC) He who asserts the marriage is not valid
under our laws bears the burden of proof to
present the foreign law.
“public policy technique”: court declines to give
due course to a claim existing under a foreign
law because it considers the nature of the claim
unconscionable or its enforcement will violate a
fundamental principle of justice, good morals or
some deep-rooted tradition.
dismissal on the ground of public policy is not
dismissal on the merits and plaintiff can go
elsewhere to file his claim.
In deciding whether to apply forum law or to
dismiss the case/rule against the party who failed
to prove the foreign law, court must consider the
ff: factors
a.
b.
c.
d.
Pakistan Intl Airlines v. Ople
(1990)
FACTS: 2 Filipino stewardess-employees of
PIA filed a case for illegal dismissal against
their employer in DOLE. PIA’s defense is that
under the contract of employment, the parties
agreed that the EE-ER relationship shall be
governed by the contract (which provided that
Pakistan law shall apply) and not the Labor
Code.
degree of public interest involved
accessibility of foreign law materials to the
parties
possibility that plaintiff is merely forum
shopping
similarities between forum law and foreign
law on the issue involved
C.
Exceptions to the Application of
Foreign Law
1)
The foreign law is contrary to an
important public policy of the forum
The foreign law is procedural in nature
Issues are related to property (lex situs)
The issue involved in the enforcement of
foreign claim is fiscal or administrative
Foreign law or judgment is contrary to
Good Morals
The application of Foreign law will work
Undeniable Injustice to the Citizens of
the Forum
The Foreign law is Penal in Character
The application of the Foreign law might
endanger the Vital Interests of the State
2)
3)
4)
5)
6)
7)
8)
The foreign law is contrary to
an important public policy of
the forum
HELD: Public Interest standard was applied.
Pakistan law cannot be invoked to prevent the
application of Phil labor laws and regulations
to the subject matter of the case. The ER-EE
relationship is much affected with public
interest, such that otherwise applicable Phil
laws and regulations cannot be rendered
illusory by the parties agreeing upon some
other law to govern their relationship.
Also, PIA did not undertake to plead and
prove the contents of the Pakistan law on the
matter; it must therefore be presumed to be the
same as applicable provisions of Phil law.
Criticisms: courts using public policy exception
can disregard the applicable law reached and
replace it with forum law to arrive at its desired
result without having to provide the rigorous
legal analysis required to explain the shift. Courts
engage in “intolerable affectation of superior
virtue”.
These exceptions fall under 3 main categories:
1: when local law expressly so provides
2: when there is failure to plead and prove
the foreign law or judgment
3: when the case falls under the exceptions
to the rule of comity
2.
24
The foreign law is procedural in
nature
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
Procedural or remedial laws are purely internal
matters peculiar only to the State. It would be
impractical for the court to adopt the procedural
machinery of another state such as rules on
venue, forms and pleadings. Any individual who
submits himself to the jurisdiction of the law of
the forum must follow the forum’s rules of
procedure.
“contra bonos mores” - acts having mischievous
or pernicious consequences or against true
principles of morality.
ex. Hiring for killing, bribery of public
officials, marriage between ascendants and
descendants
Problem: courts are tasked to characterize the
problem as to whether it is substantive or
procedural law which can be difficult at times, ex.
If issue involves statute of limitations or statute
of frauds
3.
Issues are related to property
(lex situs)
7.
The Foreign law is Penal in
Character
Penal statutes are all statutes which command or
prohibit certain acts, and establish penalties for
their violation and even those which, without
expressly prohibiting certain acts, impose a
penalty upon their commission. Revenue laws are
not classed as penal laws although there are
authorities to the contrary.
Phil Civil Code also applies lex situs to personal
property. It also applies to cases of sale,
exchange, barter, mortgage or any other form of
alienation of property.
WHY? 3 reasons:
a. land & its improvements are within the
exclusive control of the State & its
officials are the ones who can physically
deal with them
b. following a policy-centered approach,
immovables are of greatest concern to
the state in which they are situated
c. demands of certainty & convenience
This exception is partly remedied under the
international law of extradition on the basis of
jurisdictional cooperation and assistance.
8.
The issue involved in the
enforcement of foreign claim is
fiscal or administrative
The application of the Foreign
law might endanger the Vital
Interests of the State
PART THREE: PERSONAL LAW
State is not obliged to enforce the revenue law of
another.
IX. Nationality
Revenue laws affect a state in matters as vital to
its interests as penal laws. No court ought to
hear a case which it cannot prosecute without
determining whether these laws are consonant
with its own notions of what is proper.
A. Importance of a Personal Law
The individual’s nationality or domicile serves as
permanent connection b/w individual & state.
Thus, what is assigned him is a personal law
allowing courts to exercise jd or determine the
governing choice-of-law rule on a specific
situation or transaction involving him.
Opposition to exception: person should not be
permitted to escape his obligations in maintaining
the government by crossing state lines.
5.
The application of Foreign law
will work Undeniable Injustice
to the Citizens of the Forum
Statute is not “penal” not by what the statute is
called by the legislature but whether it appears,
in its essential character and effect, a
punishment of an offense against the public.
The universally-accepted rule is that as to
immovable property, it is governed by the law of
the place where it is located.
4.
6.
Personal law follows the individual. It governs
transactions affecting him most (marriage,
divorce, legitimacy, capacity to contract).
Foreign law or judgment is
contrary to Good Morals
25
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
The need for personal law arose w/ Italian
Medieval city states. Domicile was the only
relevant basis for personal law.
Law of nationality first used in Napoleon Code,
then in Austrian Code, which said that laws
concerning states & capacity govern all cities
irrespective of residence.
This notion that a person’s private rights should
be determined by his political allegiance & not by
his physical location, owes its origin to the
awareness of national identity born in the French
revolution,
Merits & Demerits of Nationality as Personal Law
Each state has prerogative to determine who are
its nationals or citizens by its own municipal law.
B.
Merits:
1) used to establish link b/w individual &
state, because laws of each state
presumed to be made for an
“ascertained population” .
The Hague Convention on Conflict of National
laws: “It is for each state to determine who are
its nationals. This shall be recognized insofar as
consistent w/ int’l. convention, int’l. customs, &
the principles of law generally recognized w/
regard to nationality”.
-since laws considered physical, moral
qualities of citizens, laws should apply to
citizens wherever they are
Art 2. Hague Convention: Question on possession
of nationality of a particular state “shall be
determined in accordance w/ the law of that
state.
2) an individual’s nationality is easily
verifiable from documents.
Who are Filipino citizens? (Philippine Constitution,
Demerits:
Art IV)
1)
Problems arise with regard to:
a. stateless persons
b. persons with multiple nationalities
c. states w/ diverse legal systems
having no single national law
2)
Determination of Nationality
1) Those who are citizens of Philippines
at time of the adoption of this
Constitution
2) Those whose fathers or mothers are
citizens of the Philippines
a person’s ties to his nation may be so
attenuated if he has lived in another
country.
- unreasonable for his national law to
govern him if he has no shared sense of
identity.
3) Those born before January 17, 1973,
of Filipino mothers, who elect Philippine
citizenship upon reaching the age of
majority; and
4) Those who are
accordance w/ law
Importance of Nationality in the Philippines
naturalized
in
1. Natural-born Citizens
Most civil law countries follow the national law
theory.
Two principles w/c may be followed:
jus soli: looks to the law of the place of one’s
Phil SC: Nationality law theory is a conflict of
laws theory by virtue of which JD over the
particular subject matter affecting a person, such
as status of a natural born person, is determined
by the latter’s nationality.
birth to determine one’s nationality (followed in
many common law countries).
jus sanguinis: rule of descent or blood. Followed
in the Philippines, articulated in the Constitution.
Art 15 CC expresses the nationality principle.
Art 15: “Laws relating to family rights & duties, or
to status, condition & capacity of persons are
binding upon citizens of the Philippines even
though living abroad.”
Natural born citizens: citizens of the Philippines
from birth w/out having to perform any act to
acquire or perfect citizenship.
26
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
2. Citizens by Naturalization
Concept broadened by the Constitution to include
“those born before January 17, 1973, of Filipino
mothers, who elect Philippine citizenship upon
reaching the age of majority”.
Naturalization confers to an alien a nationality
after birth by any means provided by the law.
In the Philippines, naturalization is by judicial
method, under CA 473, as amended RA 530.
Talaroc vs. Uy
(1952)
FACTS: Uy was elected mayor of Manticao,
but one of the defeated candidates filed a
petition for quo warranto, alleging that Uy
was a Chinese citizen and therefore ineligible
for the office.
The naturalization process was relaxed under
Marcos’ regime. Liberal method, summary
inquiry. This, however, is no longer in force.
Qualifications for Applicants for Naturalization
HELD: Uy is a Filipino citizen, following the
citizenship of his mother, who reacquired her
Filipino citizenship upon the death of her
Spanish husband. A wife reverts to her former
status upon dissolution of the marriage by the
death of her husband, and where the widowed
mother herself thus reacquired her former
nationality, her children (she being their
natural guardian) should follow her
nationality with the proviso that they may
elect for themselves upon reaching majority.
1)
Petitioner must not be less than 21
years of age on date of hearing of
petition
2)
He must have, as a rule, resided in the
Philippines for a continuous period of
not less than 10 years
o
Why the 10
requirement?
yr
residence
So government can observe
applicant’s
conduct & ensure
he imbibes principles & spirit of
our Constitution.
Co vs. Electoral Tribunal of the House of
Representatives
(1991)
FACTS: Ong Jr. ran as representative of the 2nd
district of Samar and was proclaimed the
winner. The losing candidates filed election
protests, claiming that Ong Jr. was not a
natural-born citizen.
o
a)
b)
HELD: Ong Jr. is a natural-born Filipino. He
could not have been expected to have formally
or in writing elected citizenship upon reaching
majority, because he was already a citizen. His
mother was a natural-born citizen, and his
father was naturalized when Ong Jr. was only
9 years old. The filing of a sworn statement or
formal declaration is a requirement for those
who still have to elect citizenship. For those
already Filipinos when the time to elect came
up, there are acts of deliberate choice which
cannot be less binding. Election is both a
formal and an informal process, and it has
been held that participation in election
exercises constitute a positive act of election of
Philippine citizenship.
c)
d)
e)
When may period be reduced
to 5 years?
applicant honorably held office
under the Phil gov’t. or under any
of its political subdivisions
applicant has established a new
industry or introduced a useful
invention in the Phil
Married to a Filipino woman
Engaged as teacher in a public or
recognized private school not for
exclusive instruction of children of
persons w/ particular nationality in
any of the branches of education
for a period of 2 years
Born in the Philippines
3) Must be of good moral character,
& believe in the principles underlying the
Phil Constitution &
must have conducted himself in a proper &
irreproachable manner during entire period
of residence here in his relations w/ the
constituted government as well as w/ the
community in w/c he is living
27
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
o
o
“Proper
&
irreproachable”
imposes a higher standard of
morality than “good moral
character”
o
How to prove “irreproachable
conduct”?
By
competent
The law requires moral character of highest
degree. Being merely a “law-abiding citizen is
inadequate.
Must own real estate in the Phil worth
not less than P5,000, Phil currency, or
must have lucrative trade., profession,
or lawful occupation
Yu Kian Chie vs. Republic
(1965)
FACTS: Yu Kian Chie, a Chinese national,
applied for naturalization, but the Solicitor
General opposed the petition on the ground
that Yu failed to prove that he had a lucrative
income.
HELD: The petition should be denied. His true
income (outside of allowances and bonuses
which are merely contingent) is only P150 a
month, which amount does not come up to the
category of lucrative, especially considering
that he is a married man.
o
Substantial gainful employment or the
obtaining of tangible receipts
Additional exceptions thru judicial
decisions have been criticized for
inviting violation of the Constitution &
disregarding a fundamental policy of
allowing no one to reap benefits from an
unlawful act.
5)
Must be able to speak & write English or
Spanish & any one of the principal
Philippine languages
6)
Must have enrolled his minor children of
school age in any of the public schools
or recognized private schools where Phil
history, government & civics are taught
or prescribed as part of curriculum
during entire period of residence
required of him, prior to hearing of his
petition for naturalization as citizen.
o
Children must learn & imbibe customs,
traditions & ideals of Filipinos so they’ll
become law-abiding citizenship.
o
Compliance
&
affirmative
showing…otherwise, denied.
o
Non-compliance because of insufficient
finances: denied.
employment:
appreciable
margin of income over expenses in
order to provide for adequate support
for himself & his family in case of
sickness, unemployment, disability to
work.
o
o
What
does
“lucrative
trade,
profession, or lawful occupation”
mean?
lucrative
on
a) Save in cases of hereditary
succession, no private lands shall be
transferred or conveyed except to
individuals qualified to acquire or hold
lands of the public domain Testamentary succession is not covered
by the exception provided in the
Constitution.
b) Sec. 2, BP 185 allowing a
natural-born citizen who lost his Filipino
citizenship to be a transferee of a
private land for residential purposes
(not in excess of 1,000 sq. m. urban or
1 ha rural land)
c) SC broadened exception to
prohibition by applying In Pari Delicto
doctrine, excluding from the ban the
alien vendee who later becomes a
naturalized Filipino
evidence such as testimony of
2 character witnesses well
known in community w/ high
reputation for probity.
4)
Exceptions to prohibition
ownership of land:
Requirement of ownership of real
property: At odds w/ Art XII, Sec.
7 Phil Constitution: “Save in cases
of hereditary succession, no private
lands shall be transferred or
conveyed except to individuals
qualified to acquire or hold lands of
the public domain.”
Disqualification for Naturalization
General Rule: Burden of proving disqualification
is upon the state.
28
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
But SC held that petitioner must prove he has
none of disqualifications.
Philippines (Sec. 11, Com. Act No. 473,
amended)
Declaration of Intention
The law must be strictly construed against
applicant because naturalization is a privilege,
not a right.
When: One year before petition is filed
With whom: File with office of the Solicitor
General
How: Declaration under oath of bona fide
intention to become Philippine citizen
Possible causes for Disqualification:
1) crime involving moral turpitude (act of
bareness, vileness, depravity in private
and social life in general; contrary to
conduct of honesty, modesty or good
morals)
Exemptions to Filing of Declaration of Intention:
1)
persons born in the Philippines and who
have received their primary and
secondary education in public or private
schools recognized by the Government,
and not limited to any race or nationality
2)
those who have resided continuously in
the Philippines for a period of thirty
years or more before filing their
application
3)
the widow and minor children of an
alien who declared his intention to
become a citizen of the Philippines and
dies before he is actually naturalized.
2) if applicant does not deal with and receive
Filipinos in his home and visit Filipino
homes in a spirit of friendship and
equality without discrimination
3) applicant’s conduct of keeping wife and
children in a neighboring country and
only visiting them (lack of sincere desire
to embrace Filipino customs and
traditions)
4) if it is not fully established that applicant’s
nation grants reciprocal rights to Filipino
citizens
Requirement is mandatory, absolute prerequisite
to naturalization. Failure is fatal. Void for
noncompliance with law.
C. Procedure for Naturalization
The following are the steps for naturalization:
a)
a declaration of intention to become a
citizen must first be filed, unless the
applicant is exempted from this
requirement (Secs. 5 and 6, Com. Act
No. 473).
b)
The petition for naturalization must then
be filed (Sec. 8, Com Act No. 473)
c)
After publication in the Official Gazette
or newspaper of general publication the
petition will be heard (Sec. 9, Com. Act
No. 473 as amended)
Watt vs. Republic: In cases where petition is
exempt, statement to his exemption and reasons
should appear on the petition so the public
maybe prepared to object to any evidence on this
regard.
Which court has jurisdiction?
RTC of province has exclusive jurisdiction on
which petitioner has resided for at least one year
immediately preceding filing of person.
Effect of Naturalization on Wife and Children
d)
If the petition is approved, there will be
a rehearing two years after the
promulgation of the judgment awarding
naturalization (Sec. 1, Rep., Act No.
530)
Section 15, C.A. 473 states that::
“Any woman who is now or may hereafter be
married to a citizen of the Philippines, and who
might herself be lawfully naturalized shall be
deemed a citizen of the Philippines.
e)
The last step will be the taking of the
oath of allegiance to support and defend
the Constitution and the laws of the
Minor children of persons naturalized under this
law who have been born In the Philippines shall
be considered citizens thereof.
29
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
A foreign-born minor child, if in the Philippines at
the time of naturalization of the parent, shall
automatically become a Philippine citizen, and a
foreign-born minor child, who is not in the
Philippines at the time the parent is naturalized,
shall be deemed a Philippines citizen only during
his minority, unless he begins to reside
permanently in the Philippines when still a minor,
in which case, he will continue to be a Philippine
citizen even after becoming of age.
residence for 10 years in the Philippines
(actual stay: Oct. 16 ’60 – June ’62)
A child born outside of the Philippines after the
naturalization of his parent shall be considered a
Philippine citizen, unless within one year after
reaching the age of majority, he fails to register
himself as a Philippine citizen at the American
Consulate of the country where he resides, and
to take the necessary oath of allegiance.”
Also, they cannot be allowed to extend their
stay. The period of stay of temporary visitors
cannot be extended without first departing
form the Islands. They cannot also claim that
they should be allowed extension until the
father’s oath taking because their allowed stay
was for a definite period up to a fixed day.
As to the children: The law requires that they
must be dwelling in the Philippines at the time
of the naturalization of the parent. Since prior
to their father’s naturalization, they were
already required to leave the country, they
cannot be said to be lawfully residing here.
Vivo vs. Cloribel
(1968)
FACTS: Chinese wife, Chua and her minor
children arrived in the Phils from Hkong. Her
husband applied for naturalization in the
Phils. Wife and children applied for indefinite
extension of stay. Sec of Foreign Affairs
allowed the change of their status from
temporary visitors to special non-immigrants
for 2 years. Commissioner of Immigration
refused their extension. The Foreign Affairs
Sec. denied their appeal and they were
advised to leave the Phils. Chua filed action
for mandamus to implement the first ruling of
the Secretary but this was denied. Chua
efilled alleging that her husband will be
granted Filipino citizenship so they were also
due for eventual conversion.
Moy Ya Lim vs. Commissioner of
Immigration
(1971)
FACTS: In 1961, Lau, a Chinese, was permitted
to stay in the Philippines for 1 month to visit
her grandfather. After repeated extensions, she
was allowed to stay until Feb. 1962. However,
on Jan. 1962 she married a Filipino.
Commissioner ordered her to leave and sought
her deportation. Spouses filed appeal in SC.
HELD: Under Sec. 15 of CA 473, an alien
woman marrying a Filipino, native born or
naturalized, becomes ipso facto a Filipina
provided she is not disqualified to be a citizen
of the Phils under Sec. of the same law.
Likewise, an alien woman married to an alien
who is subsequently naturalized here follows
the Philippine citizenship of her husband the
moment he takes his oath as Filipino,
provided, that she does not suffer from any of
the disqualifications under Sec. 4.
HELD: The wife, under Sec. 15 of the Revised
Naturalization Law, will not automatically
become a Filipino citizen upon her husband’s
naturalization as she must still show that she
possesses all the qualifications and none of the
disqualifications for naturalization. But her
having misrepresented that she will stay for a
brief period but her intention was really to
stay for a long time, demonstrated her
incapacity to satisfy the qualifications under
Sec. 2 which provides that she must be of good
moral character and must have conducted
herself in a proper and irreproachable manner
during the entire period of her stay. She also
failed to satisfy the requirement of continuous
This ruling reversed a prior decision of the SC
(Burca vs. Republic) which held that the alien
woman married to a Filipino must first file a
petition for citizenship alleging that she
possesses all the qualifications and none of the
disqualifications mandated by law.
No Judicial Declaration of Philippine Citizenship
A declaration of Phil citizenship may not be
granted in an action for declaratory relief nor
under the Civil Code provision (Art. 412) on
correction of entry in the Civil Registry.
30
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
But the rule was relaxed in later decisions. A
petition for correction of errors in the entry of the
Civil Registry even for a change of citizenship or
status may be granted provided that an
appropriate action is made wherein all parties
who may be affected by the entries are notified
and represented and there is a full blown
adversary proceeding.
have waited for such or seek naturalization by
legislative or judicial process.
Frivaldo vs. COMELEC
(1996)
FACTS: Frivaldo took his oath of allegiance
under PD 725 on June 30 ’95, much later than
he filed his certificate of candidacy. He now
claims Filipino citizenship through a valid
repatriation
Tan Yu vs. Republic: There can be no action or
proceeding for the judicial declaration of the
citizenship of an individual.
HELD: Frivaldo reacquired his Filipino
citizenship and is now eligible to assume the
office as governor. Law does not specify any
particular date or time when candidate must
possess citizenship unlike that of residence
and age. It can also be said that Frivaldo’s
repatriation retroacted to the date of his filing
his application in Aug. 1994.
D. Loss of Philippine Citizenship
CA 63, as amended by RA 106, provides that a
Filipino citizen may lose his citizenship in any of
the following ways:
1) Naturalization in foreign countries
Frivaldo vs. COMELEC
(1989)
FACTS: Frivaldo was elected governor of
Sorsogon and assumed office. The League of
Municipalities of Sorsogon filed for annulment
of his election on the ground that he is a US
citizen and therefor incapable of holding
public office. Frivaldo admitted that he was a
naturalized US citizen in 1983 but he
underwent naturalization only to protect
himself from then Pres. Marcos. Sol Gen
supported respondent’s contention that he is a
US citizen because he did not repatriate
himself after his naturalization in the US
Labo vs. COMELEC
(1989)
FACTS: Labo was elected mayor of Baguio.
Lardizabal filed a petition for quo warranto
alleging that Labo is not a citizen.COMELEC
declared that he was a citizen but the CID
ruled that he is not since the Australian Govt
said that he is still a naturalized Australian
citizen.
HELD: Labo is not a citizen of the Phils
because he lost the same by performing the ff
acts under CA 63:
1. naturalization in a foreign country
2. express renunciation of citizenship
3. subscribing to an oath of allegiance to
support the Consti and laws of a foreign
country.
HELD: Frivaldo lost his Filipino citizenship. If
Frivaldo really wanted to disavow his US
citizen
citizenship
&
reacquire
Phil.
citizenship, he must do so under our laws.
Under CA 63, Phil. citizenship may be
reacquired through:
1.
2.
3.
Even if it is to be assumed that his
naturalization was annulled because his
marriage to an Australian was found to be
bigamous, this does not automatically restore
his citizenship. He must reacquire it by direct
act of Congress, by repatriation or by
naturalization. None of these methods were
done. Under PD 725, repatriation may be done
by applying with the Special Committee on
Naturalization and if the application is
approved, applicant must make an oath of
allegiance to the Republic of the Phils before a
certificate of registration is issued by the CID.
direct act of Congress
naturalization
repatriation
The alleged forfeiture of US citizenship
because of his active participation in the
elections is between him and the US; it could
not have resulted to automatically restoring
his Filipino citizenship which he earlier
renounced. At most, he could be said to be a
stateless individual. Also, although the Special
Committee to hear repatriation cases under
LOI 270 has not yet been convened, F should
2) Express renunciation of citizenship
31
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
Aznar vs. COMELEC
(1990)
FACTS: Osmeña filed a COC for provincial
governor of Cebu but was declared ineligible
(upon petition of Aznar) for being a US citizen,
as shown by an Alien Certificate of
Registration. Osmeña alleges that he is a
Filipino citizen being the child of a Filipino,
holder of a Phil. passport, a resident of the
Phils. since birth, and a registered voter.
a)
if it shown that said naturalization
certificate was obtained fraudulently or
illegally;
b)
if the person naturalized shall, w/in the
5 yrs next following the issuance of said
certificate, return to his native country
or to some foreign country & establish
his permanent residence there;
Provided that the fact that person
naturalized remain for 1 year in his native
country of former nationality, or 2 years in
any country, shall be considered as prima
facie evidence of his intention of taking up
his permanent residence therein
HELD: Osmeña is a Filipino citizen. Aznar
failed to present proof that O lost his
citizenship by any of the modes under CA 63;
he merely relied in the Alien Certificate of
Registration in concluding that O has been a
naturalized US citizen. Phil. courts are only
allowed to determine who are Filipino citizens,
but have no power to determine who are
persons considered as American citizens
under US laws. Also, the mere fact that he has
an ACR does not mean that he is no longer a
Filipino; the renunciation needed to lose Phil.
citizenship must be “express.”
3) By subscribing to an oath of
allegiance to support the constitution or
laws of a foreign country upon attaining
twenty one years of age or more,
subject to certain exceptions
c)
If the petition was made on an invalid
declaration of intention
d)
If it is shown that the minor children of
the person failed to graduate from
recognized public or private high school
where the required subjects are taught,
through the fault of the parents either
by neglecting to support or by
transferring them to another school.
Certified copy of decree canceling certificate
forwarded to the Office of the President &
the Solicitor General.
e)
4) by rendering service to, or accepting
commission in, the armed forces of a
foreign country, subject to certain
exceptions
5) by having been declared by
competent authority, a deserter of the
Philippine armed forces in time of war,
unless subsequently, a plenary pardon
or amnesty has been granted
If it is shown that the naturalized citizen
allowed himself to be used as dummy in
violation of the Constitution or law
requiring Philippine citizenship as a
requisite for exercise, use or enjoyment
of a right, franchise or privilege.
Only a Grant of Political Privilege:
Judgment directing issuance of certificate of
naturalization is a mere grant of political
privilege. Neither estoppel nor res judicata may
be invoked to bar the state from initiating an
action for cancellation or nullification of certificate
of naturalization issued.
6) in the case of a woman, upon her
marriage to a foreigner, if by virtue of
the laws in force in her husband’s
country, she acquires his nationality
If shown to have been obtained by fraud or
illegal means, the certificate may be cancelled.
Decision in naturalization case does not
constitute res judicata.
7) cancellation of the certificate of
naturalization
The Judge may cancel the naturalization
certificate issued and the registration in the Civil
Registry, upon motion made in proper
proceedings by Sol Gen, on any of the following
grounds:
Republic vs. Li Yao
(1992)
FACTS: Li Yao was a naturalized Filipino
citizen, but the Sol Gen filed a petition to
cancel his certificate of naturalization on the
ground that he obtained such certificate
32
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
through fraudulent means. One of the grounds
was tax evasion.
In determining rights of an individual who may
claim multiple nationality in a third state, the ICJ
applied principle of “effective nationality.”
HELD: A certification of naturalization may be
cancelled if it was subsequently discovered to
have been obtained by misleading the court
upon any material fact. And a naturalization
proceeding is not a judicial adversary
proceeding, such that a decision therein is not
res judicata as to any matter that would
support a judgment canceling a certificate of
naturalization on the ground of illegal or
fraudulent procurement thereof.
Nottebohm Case
(1955)
FACTS: Liechtenstein brought a case against
Guatemala in the ICJ for breach of its
obligations under international law and asking
for reparations in behalf of Nottebohm. It is
the position of Liechtenstein that Nottebohm
acquired Liechtenstein citizenship which
would entitle him to its diplomatic protection.
HELD: Liechtenstein is not entitled to extend
protection to Nottebohm, because when N
applied for naturalization, there is nothing to
indicate that such application was motivated
by any desire to dissociate himself from the
Government of his country, Germany. He had
been settled in Guatemala for 34 years, and it
was the main seat of his interests and business
activities.
E. Problems in Applying the Nationality
Principle
1. Dual or Multiple Citizenship
Each state determines who its nationals are in
accordance w/ the rule in the Hague Convention
on Conflict of National Laws.
Questions on WON a person possesses the
nationality of a certain state are to be determined
in accordance w/ the state’s internal law.
In contrast, his actual connections with
Liechtenstein were extremely tenuous. No
settled abode and no prolonged residence at
the time of application; the application shows
that he was a mere visitor and his visit is of a
transient character. There is an absence of any
bond of attachment between N and L and, on
the other hand, the existence of a longstanding and close connection between him
and G, a link which his naturalization in no
way weakened.
It is possible that a person can be claimed as
national of 2 or more states.
Situations w/c may result to dual nationality:
Application of jus soli & jus sanguinis
1) Child born of
o parents who are nationals of
country applying jus sanguinis
o in a country applying jus soli
Oh Hek How vs. Republic
(1969)
FACTS: Oh Hek How, a Chinese citizen,
applied for naturalization in the Philippines
which was granted. A certificate of
naturalization was issue in his favor but the
Government appealed, claiming that it was
issued before the Minister of the Interior of
Nationalist China issued the permission for a
valid renunciation of Chinese citizenship. Oh
Hek How argues that such permission is not
among the requirements under our law for the
naturalization of an alien.
has dual nationality
2) Filipino citizen who marries an alien
may acquire citizenship of his or her
spouse if the spouse’s national law so
allows.
But a Filipino citizen who marries an alien shall
retain Philippine citizenship, unless by his or her
act or omission, he is deemed under the law, to
have renounced it by taking an oath of allegiance
to the spouse’s country or by express
renunciation.
3) Another instance of dual or multiple
nationality is the case of an individual
who is naturalized citizen of another
state but has not effectively renounced
his former nationality.
HELD: The permission of the Minister of the
Interior of China is required before a certificate
of naturalization can be issued in favor of Oh
Hek How. The question of how a Chinese
33
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
1)
2)
citizen may strip himself of that status is
necessarily governed by the laws of China, not
that of the Philippines. As a consequence, a
Chinese national cannot be naturalized as a
citizen of the Philippines, unless he has
complied with the laws of China requiring
previous permission of its Minister of the
Interior for renunciation of nationality.
Major objective: Remedy situation of children
born w/out acquiring any nationality, i.e. when a
child is born in a country following jus sanguinis
principle of parents who are citizens of a jus soli
country.
2. Statelessness
Convention mandates that:
*jus sanguinis country grant its nationality to a
person born w/in its territory if he would
otherwise be stateless.
Understood in two senses:
a)
b)
as punishment or
as discriminatory instrument for political,
religious or ethnic reasons
De jure stateless person: refers to an
individual who has been stripped of his
nationality
by
his
own
former
government w/out having opportunity to
acquire another.
*jus soli country to extend its nationality to a
person who would otherwise be considered
stateless when one of his parents is a citizen of
the contracting state.
Problem of statelessness began during
WW II & worsened under Nazi regime in
Germany & in USSR.
Kookooritchkin vs. Solicitor General
(1948)
FACTS; Kookooritchkin, a native-born Russian
who claims to be a stateless refugee, filed a
petition for naturalization. The petition was
granted, for which the SolGen appealed,
saying that Kookooritchkin is not a stateless
person.
De facto stateless person: individual
possessed of a nationality but whose
country does not give them protection
outside their own territory.
- commonly called “refugees”.
HELD: K is a stateless person. His testimony,
aside from being uncontradicted, is supported
by the well-known fact that the ruthlessness of
modern dictatorships has scattered throughout
the world a large number of stateless refugees
or displaced persons, without country and
without flag. Knowing the history, nature and
character of the Soviet dictatorship, it would
be technically fastidious to require further
evidence of K’s claim that he is stateless than
his testimony that he owes no allegiance to the
Russian Communist government and, because
he has been at war with it, he fled from Russia
to permanently reside in the Philippines.
Vietnam War: Masses of people escaped from
Vietnam, Cambodia, and Laos without any travel
documents, identity papers or any form of
identification normally granted by government.
Conventions to Alleviate Problems of Stateless
Persons:
1) 1951 Geneva Convention on Status
Refugees
-provided some basic rights of stateless persons
2) 1954 UN Conference on the Elimination or
Reduction of Future Statelessness
3) Convention on the Reduction of
Statelessness
- enumerates conditions under w/c an
individual would not lose his or her nationality
upon the risk of becoming stateless should a new
nationality not be proved: i.e. divorce, adoption,
naturalization, expatriation.
X. Domicile
Convention also prohibits states from depriving
or recognizing it; and in its absence shall be
understood as the place where their legal
representation or place of business is.
A.
Definition
Municipal law concept of domicile (Art. 50, CC):
natural persons: the place of habitual residence
juridical persons: determined by the law creating
nationals of identity:
34
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
Conflict-of-laws
definition
of
domicile
(Restatement): the place with which a person
has a settled connection for certain legal
purposes, either because his home is there or
because that place is assigned to him by law.
HELD: Miguel’s possession of a green card
disqualified him from running for mayor. His
application for immigrant status and his
possession of a green card are conclusive proof
that he is a permanent resident of the US
despite his occasional visits to the Philippines.
Justice Story: the place of true, fixed permanent
home and principal establishment, and to which,
whenever he is absent, he has the intention of
returning.
A candidate who is a green card holder must
have waived his status as a permanent
resident or immigrant of a foreign country in
order to be qualified to run for elective office
in the Philippines. In this case, there is no
proof that he had waived his status as a
permanent resident or immigrant of the US
before he ran for election as mayor of Bolinao;
hence he was disqualified to run for that office.
A person may live in a place where he is not
domiciled. To acquire a domicile, there must be
concurrence of
1) intention to make it one’s domicile and
2) physical presence.
“Residence” simply requires bodily presence. It is
a relatively more permanent abode of a person,
while residence applies to a temporary stay of a
person in a given place (Koh vs. CA).
Uytengsu vs. Republic
(1954)
FACTS: Uytengsu was born in the Philippines
of Chinese parents. He went to the US to
study; but in one of his vacations in the
Philippines he applied for naturalization,
during the pendency of which he returned to
the US to finish his studies. Upon his return,
his application was granted; the Government
appealed the grant because under the law an
applicant for naturalization is required to
reside continuously in the Phils. from the date
of filing of the petition up to the time of his
admission
to
Philippine
citizenship.
Uytengsu’s defense is that since he has been
domiciled in the Philippines during the period
of his application, he was also a resident for
that period.
Domicile is permanent in nature; it is not as
transient and temporary as residence.
2 Requisites for domicile:
1) physical presence
2) intent – actual intent, not merely floating
intent
 In order to establish new domicile, it is
not necessary to prove intent to stay
indefinitely, as long as the intent to
abandon the old domicile is apparent.

In domicile of choice, intent is important

In constructive domicile, there is no
intent because the domicile is chosen by
the law for the person

The motive for leaving and the length of
stay in the new domicile is not relevant
in the determination of domicile of
choice

Habitual residence: “bridge” between
residence and domicile
HELD: “Residence” and “domicile” each has,
in strict legal parlance, a meaning distinct and
different from each other. The essential
distinction between resident and domicile is
this: the first involves the intent to leave when
the purpose for which he has taken up abode
ceases, while the other has no such intent, the
abiding is animo manendi. They are not to be
held synonymous; residence is an act, while
domicile is an act coupled with intent. The
question of domicile is not involved in
determining whether a person is a resident of
a state or country.
_______________
Caasi vs. CA
(1990)
FACTS: Miguel ran for mayor of Bolinao and
won. His opponent filed a petition for
disqualification, alleging that Miguel is a green
card holder and hence, a permanent resident
of the US and not of Bolinao.
B.
35
Merits and Demerits of Domicile
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
Merits:
1)
preferred primary connection between a
person and a state because it satisfies
the very purpose for having a personal
law (in common law countries) – it
provides an adequate basis for him to
exercise rights therein and the state to
impose duties on him
2)
also suitable for countries with a federal
system of government – the law of the
domicile is the law of the place where
the individual lives
Demerits:
1)
one’s domicile is not ascertainable
without first resorting to the courts to
establish whether or not there is animo
the notion of domicile differs widely in
different states (some distinguish
between domicile and residence; others
attribute different meanings of domicile
for different purposes)
3)
if the law of domicile of origin is given
overriding significance, it may create the
problem of attenuated connection
(similar to the use of nationality as
personal law)
General Rules on Domicile
1)
No person shall be without a domicile;
his domicile of origin prevails until the
acquisition of a new one.
3)
Domicile establishes a connection
between a person and a particular
territorial unit.
4)
The burden of proving a change of
domicile is upon whoever alleges that a
change has been secured.
HELD: For purposes of election law, residence
is synonymous with domicile. Mere absence of
an individual from his permanent residence
without the intention to abandon it does not
result in a loss or change of domicile.
The Philippines follow the nationality law theory,
but there are instances when our courts refer to
the domicile of an individual in order to
determine his rights or obligations. Example is
1) when the litigant is an alien whose
country of origin follows the domiciliary principle;
or
2) where the situation concerns stateless
persons, or those with dual or multiple
nationalities; or
3) when an alien domiciled in the Philippines
executes a will abroad.
C.
A person cannot have two simultaneous
domiciles (a person can have only one
domicile for a given purpose or a given
time under the law of a particular state,
but it should not be assumed that that
determination will be binding on other
states or on the same state for other
purposes).
Romualdez-Marcos vs. COMELEC
(1995)
FACTS: Imelda Marcos filed her Certificate of
Candidacy for representative of 1st District of
Leyte. A petition to disqualify her was filed on
the ground that she lacked the 1-yr resident
requirement as provided for in the
Constitution. In her COC, she placed “7
months” as length of residence.
manendi
2)
2)
While Marcos held various residences for
different purposes during the past four
decades, none of these purposes unequivocally
point to an intention to abandon her domicile
of origin in Tacloban, Leyte. She did not lose
her domicile of origin upon her marriage to
Pres. Marcos; what she gained was actual
residence.
Ujano vs. Republic
(1966)
FACTS: Ujano was a naturalized US citizen
who returned to the Philippines as a visitor
and petitioned to reacquire Philippine
citizenship. The petition was denied because
he did not have the required residence.
HELD: Residence, for naturalization purposes,
has been interpreted to mean the actual or
constructive permanent home or domicile. He
cannot be said to have established his domicile
36
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
here although he is actually present because
his allowed stay as a visitor is only temporary
and he must leave when the purpose of his
coming is done.
FACTS: Velilla, the administrator of the estate
of Moody, appealed the inheritance tax
assessed against the estate on the ground that
the decedent was not domiciled in the
Philippines. Moody went to Calcutta and Paris
before his death, and he died in India.
In re Dorrance’s Estate
(1932)
FACTS: Dorrance was born in Pennsylvania.
He worked and resided in New Jersey,
transferred to Philadelphia and then returned
to New Jersey. Later he was able to buy an
estate in Pennsylvania, where he stayed with
his family until his death. During his lifetime
he expressed that he intends to remain a
domiciliary of New Jersey.
Pennsylvania
assessed inheritance tax on his estate.
HELD: He was a domiciliary of Manila.
Domicile in the Civil Code is defined as the
place of habitual residence, which was Manila
in the CAB. There was no statement from
Moody, oral or written that he adopted a new
domicile while he was absent from Manila. To
establish abandonment, he must show his
deliberate and provable choice of new
domicile coupled with actual residence and
declared or proved intent that it should be his
permanent abode. This was not proven.
HELD: He was domiciled in Pennsylvania at
the time of his death. A man cannot retain a
domicile in one place when he has moved to
another, and intends to reside there for the rest
of his life, by any wish, declaration or intent
inconsistent with the facts of where he actually
lives and what he means to do.
White vs. Tennant
(1888)
FACTS: White and his wife lived in West
Virginia, but agreed to sell their house there
with the declaration, intent and purpose of
making Pennsylvania their home. Upon
reaching Penn., they had to go back to West
Va. on account of the wife’s illness but White
went to Penn. everyday to look after his stock.
Upon his death, the administrator paid the
whole of the estate to the widow according to
West Va. law. However, if Penn. law was
applied, ½ of the estate would go to White’s
siblings. The law of his domicile governs the
distribution of his estate.
D. Kinds of Domicile
3 Kinds of Domicile:
1)
Domicile of origin: a person’s domicile at
2)
Domicile of choice: also called voluntary
birth. A legitimate child’s domicile is that
of his father, while an illegitimate child’s
is that of his mother.
HELD: Pennsylvania was his domicile at the
time of his death. Two things must concur to
establish domicile—the fact of residence, and
the intention of remaining. These two must
exist in combination. When one domicile is
definitely abandoned, and a new one selected
and entered upon, length of time is not
important; one day will be sufficient, provided
the animus exists.
domicile, is the place freely chosen by a
person sui juris. There must be
concurrence of physical presence in the
new place and unqualified intention to
make that place one’s home.
A problem deciding the issue of domicile of
choice is the degree of permanence of abode.
Difference between domicile of origin and
domicile of choice: lies in a) conditions necessary
for abandonment and b) capacity for revival.
3)
Reverter or revival doctrine: presumption that
domicile of origin revived once the domicile of
choice is given up, before a new one is required.
Constructive domicile: domicile assigned
to persons incapable of choosing their
own domicile by operation of law.
Includes minors, mentally disabled,
married women.
Minors or infants are indubitably incapable of
choosing their own domicile. Their domicile
Velilla vs. Posadas
(1935)
37
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
Married Women: based on the concept of unity
automatically changes when their father’s
domicile changes. Minors take the domicile of
their mother upon the death of their father.
of identity of spouses, the wife was presumed to
take the domicile of the husband.
A person who has a mental disability is also
assigned a constructive domicile. It is presumed
that a person with a mental disability cannot
acquire a domicile of choice because of his
inherent inability to decide where to make his
home.
Go Chen and Go Lek vs. Collector of
Customs
(1932)
FACTS: Tan Bon, a Chinese citizen, entered the
Philippines as the wife of a Chinese merchant.
She asked her minor children from a previous
marriage to join her here, but they were not
allowed entry.
Special Problems in Domicile of Choice vis-à-vis
Constructive Domicile
1)
domicile of people kept under physical
or legal compulsion
2)
domicile of married women seeking to
acquire separate domicile from their
husbands
HELD: The minor children cannot enter the
Philippines. A Chinaman’s Chinese wife and
her minor children do not enter the Philippine
Islands through their own right, but by virtue
of the right of the husband and father. Since
Tan Bon did not enter the Philippines by her
own right but by virtue of her husband, she is
not entitled to bring in her minor children by
another Chinaman who never had legal
residence in the Archipelago. The mere fact of
their being children of Tan Bon confers on
them no right of entry, inasmuch as she herself
did not enter of her own right, and they cannot
base their right on hers.
People under Compulsion: traditional view is that
he is in that place not as a result of his volition.
Examples are military personnel, prisoners and
people with disabilities who are confined in
institutions.
Caraballo vs. Republic
(1962)
FACTS: Caraballo, an American staff sergeant
in the US Air Force stationed in Clark Air Base,
filed a petition for adoption of a Filipino child.
The petition was denied on the ground that he
was not qualified to adopt, him being a nonresident alien.
De La Vina vs. Villareal and Geopano
(1920)
FACTS: Geopano filed a complaint in CFI
Iloilo against de la Vina, her husband, for
divorce on the ground of infidelity. De la Vina
opposed, saying that CFI Iloilo has no JD over
the case considering that he resides in Negros,
such that Geopano must also be considered a
Negros resident, because the domicile of the
wife follows that of the husband.
HELD: Actual or physical presence or stay of a
person in a place, not of his free and voluntary
choice and without intent to remain there
indefinitely, does not make him a resident of
the place. Caraballo is disqualified to adopt
because he is a non-resident alien. His stay in
the Philippines is only temporary, and is
merely the result of his assignment as staff
sergeant.
HELD: CFI Iloilo has JD. Where the husband
has given cause for divorce, the wife may
acquire another and separate domicile from
that of her husband.
*There are exceptions to the rule that the
domicile of the wife is determined by that of
her husband, one of which is that the wife may
acquire another and separate domicile from
that of her husband where the theoretical
unity of husband and wife is dissolved, as it is
by the institution of divorce proceedings; or
where the husband has given cause for
divorce; or where there is a separation of the
In recent decisions, courts have held that a
person under compulsion should not be barred
from proving that he has developed the required
unqualified intention to establish his permanent
abode in such place. The fact of compulsion is
reduced to just one of the factors in determining
whether intent, in fact, exists.
38
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
parties by agreement, or a permanent
separation due to desertion of the wife by the
husband or attributable to cruel treatment on
the part of the husband; or where there is a
forfeiture by the wife of the benefit of the
husband’s domicile.
Recto vs. Harden
(1959)
FACTS: H engaged the services of R, as
counsel in her suit against her husband for
support and for preservation of her rights in
the conjugal partnership in contemplation of a
divorce suit. However, the spouses entered
into a compromise agreement to defeat the
claim of R in attorney’s fees. H moved to
dismiss on the ground of invalidity of the
contract of service because divorce is contrary
to Phil law.
Modern view (married women): dispenses with
the presumption that the wife’s domicile is the
same as her husband’s. Each party establishes
his or her own domicile completely independent
of each other. As a result, the wife need not
show that her husband has given cause for
divorce or legal separation to have a separate
domicile.
HELD: R should be paid his fees. H spouses
are US citizens and their status and the
dissolution thereof are governed by the laws of
the United States, which sanction divorce.
Therefore, contract is not contrary to public
policy.
XI. Principles on Personal Status and
Capacity
A. Definition
B.
Personal capacity


Includes both condition and capacity
Embraces matters as the beginning and
end of personality, capacity to have
rights, capacity to engage in legal
transactions, protection of personal
interests,
family
relations,
also
transactions of family law such as
marriage, divorce, separation, adoption,
legitimation and emancipation, and
succession.
-
Capacity to Act: power to do acts with legal
effects
ART. 37, Civil Code:
Aliens can sue and be sued in our courts
even on issues relating to status and
capacity. However, the applicable law is their
personal law.
Barnuevo vs. Fuster
(1913)
FACTS: Fuster and Yanez separated. After 10
years, Y filed for divorce on the ground of F’s
adultery. Court granted decree of divorce.
Fuster contests jurisdiction of the court to issue
the said decree.
Juridical capacity, which is the fitness to be the
subject of legal relations, is inherent in every
natural person and is lost only through death.
Capacity to act, which is the power to do acts
with legal effect, is acquired and may be lost.
In case of Filipinos, Art. 15 of the CC states that
follows
Jurisdiction
Judicial
Status, capacity, and rights and duties, brought
into existence by State A and conferred in a
natural or juridical person under its jurisdiction,
should be recognized by State B, without any
exception or qualification imposed by the latter,
except by some definite or protected rule of
municipal law.
subject of legal relations
capacity
from
Status once established by the personal law of
the party, is given universal recognition.
Juridical capacity: fitness of a man to be the
personal status and
nationality principle.
Legislative
Distinguished
Jurisdiction
the
HELD: Phil court has jurisdiction. The
authority and jurisdiction of courts are not a
matter of private law of persons but of the
public or political law of the nation. The
jurisdiction of courts and other matters of
In case of aliens, courts may refer to their
national law or domiciliary law.
39
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
procedure are of public nature and are
submitted to the territorial principle.
Three ways of dealing with the problem:
Note: The doctrine is no longer controlling.
Divorce is considered a violation of public policy
so that courts cannot issue the same.
C.
Beginning and End of Personality
1.
there is a rebuttable presumption that a
person is dead after he has been absent for
a number of years
2.
a person’s unexplained absence is judicially
investigated and established which results in
legal effects similar to those of death
a judicial decree shall have to be issued
declaring a person dead before legal effects
of death can take place
3.
The determination of the exact moment
personality begins is referred to the individual’s
personal law.
*Phil law follows the rebuttable presumption (1).
Art. 40, CC
Birth determines personality; but the conceived
child shall be considered born for all purposes
that are favorable to it, provided it be born later
with the conditions specified in the following
article.
Art. 390, CC
Art. 41, CC
The absentee shall not be presumed dead for the
purpose of opening his succession till after the
absence of 10 years. If he disappeared after the
age of 75 years, an absence of 5 years shall be
sufficient in order that his succession may be
opened.
After the absence of 7 years, it being unknown
whether or not the absentee still lives, he shall
be presumed dead for all purposes, except for
those of succession.
For civil purposes, the fetus is considered born if
it is alive at the time it is completely delivered
from the mother’s womb. However, if the fetus
had an intra-uterine life of less than 7 months, it
is not deemed born if it dies within 24 hours after
its complete delivery from the maternal womb
Art. 391, CC
Geluz vs. CA: SC did not allow for recovery of
The ff. shall be presumed dead for all purposes,
including the division of estate among the heirs:
(1) a person on board a vessel lost during sea
voyage, or an airplane which is missing, who
has not been heard of for 4 years since the
loss of the vessel or airplane.
(2) A person in the armed forces who has taken
part in war and has been missing for 4 years
(3) A person who has been in the danger of
death under other circumstances and his
existence has not been known for 4 years
damages for the injury and death of a conceived
child which is still in the mother’s womb. Art. 40
cannot be invoked since it expressly limits the
provisional personality by imposing the condition
that the child should be subsequently born alive.
Civil personality is commenced at birth and is
extinguished by death. A declaration of death
issued by a competent court is considered valid
for all purposes.
Limjoco vs. Intestate Estate of Fragante: HELD:
SC ruled that the estate of a deceased applicant
can be granted a CPC to avoid injustice or
prejudice resulting from the impossibility of
exercising such legal rights & fulfilling such
legal obligations of the decedent as survived
after his death unless the legal fiction, that the
estate is considered a person, is indulged.
However, for specific purposes, our laws require
that a declaration of death be issued before
certain legal effects of death arise ex. Contracting
a subsequent marriage but the periods are
reduced to 2 years.
The legal effects of absence and restrictions on
his capacity are determined by his personal law.
D. Absence
E.
Name
A person’s name is determined by law and
cannot
be
changed
without
judicial
intervention.(Art. 376, CC) Case law shows that
The domestic laws of states do not treat
absentees alike.
40
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
courts have allowed petitions on grounds that the
name—
1.
2.
3.
4.
HELD: Illinois law should apply. Matters
bearing upon the execution, interpretation and
validity of a contract are determined by the
law of the place where the contract is made.
is ridiculous or tainted with dishonor or
extremely difficult to pronounce
when the change is necessary to avoid
confusion
when the right to a new name is a
consequence of change in status
a sincere desire to adopt a Filipino name to
erase signs of a former alien nationality
which unduly hamper social and business life
This case should have been resolved as a
capacity case instead of as a contract case
(characterization).
PART FOUR: CHOICE OF LAW PROBLEMS
Confusion as to one’s paternity has been held to
justify the court’s denial of a petition for change
of name.
XII. Choice of Law in Family Relations
Man & woman may decide to marry in a country
other than that of their nationality & come home.
Issue of validity of marriage & legal
consequences
may
be
raised
(Legal
consequences such as personal & property
relations, status & rights of children, use of
surname & right to inherit).
Whether an alien’s change of name is valid
depends solely on his personal law.
F.
Age of Majority
The legal disability and rights attached to
minority are aspects of personal status. It is the
individual’s personal law which determines
whether he has reached the age of majority.
Family law is an area of substantive law which
reflects strong policies of state often based on
values highly held by society. Family relations
give rise to grave individual & societal concerns.
RA 6809 lowered the age of majority from 21 –
18 years but parental consent for contracting
marriage is still required until the age of 21.
A.
Marriage
Family Code Definition:
G. Capacity
Art 1. “Marriage is a special contract of
permanent union b/w man & woman entered into
in accordance w/ law for the establishment of
conjugal & family life.
A person’s ability to act is governed by his
personal law. Rules on capacity of an individual
to bind himself by contract with other persons or
by unilateral acts are the very core of the rules
that identify his legal position. The incapacities
attached to his legal status go with him wherever
he is.
It is the foundation of the family & an inviolable
social institution whose nature, consequences &
incidents are governed by law & not subject to
stipulation except that marriage settlements may
fix property relations during the marriage w/in
limits provided by this Code.”
The general rule on capacity is subject to several
exceptions. These include liability in tort, which is
subject to the law of the place of the tort and the
restrictions on the contracting capacity of a
married woman.
Juxtaposed w/ Art15 CC, w/c states that
questions on family rights, duties, status,
conditions & capacity are governed by lex
nationalii, the importance of such definition is
realized.
Insular Government vs. Frank
(1909)
FACTS: Insular Govt entered into an
employment contract with Frank in Illinois
when he was still a minor under Phil law but
not under Illinois law. Frank breached the
contract so IG sued him.
Marriage is a special contract as distinguished
from an ordinary contract:
1)
2)
3)
41
entered into by a man & a woman
both at least 18 years of age
solemnized by a person specifically
authorized by law
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
4)
5)
6)
7)
a permanent union unless one party
dies, or marriage is annulled or declared
void in special circumstances
cannot be abrogated, amended or
terminated by one or both parties at will
nature & consequences as well as
incidents are governed by law & not
subject to stipulation by parties unlike
ordinary contracts
violation of marital obligations may give
rise to penal or civil sanctions while
breach of conditions of ordinary contract
can be ground for an action for
damages
2)
3)
Lex Loci Celebrationis (expressed in Art 26 FC):
“All marriages solemnized outside the
Philippines in accordance w/ the laws in force in
the country where they were solemnized, and
valid there as such, shall also be valid in this
country…”
1. Philippine
Policy
on
Marriage and the Family
Adong vs. Cheong Seng Gee
(1922)
FACTS: The late Cheong Boo’s estate is being
claimed by Cheong Seng Gee, who says that he
is the legitimate child of the decedent with Tan
Dit, whom the decedent allegedly married in
China.
Art XV. Sec. 2: Marriage as an inviolable social
institution, is the foundation of the family & shall
be protected by the state.
Presumption of validity: The Philippines
establishes a presumption of validity to give
stability to marriage especially in Conflicts of Law
problems.
HELD: The validity of the Chinese marriage
cannot be recognized. There is no competent
testimony what the laws of China in the
Province of Amoy concerning marriage were
in 1895. There is lacking proof so clear, strong
and unequivocal to produce a moral
conviction of the existence of the alleged
Chinese marriage.
Art 220. CC. In case of doubt, all presumptions
favor the solidarity of the family. Thus every
intendment of law or facts lean toward the
validity of marriage, the indissolubility of
marriage bonds, legitimacy of children, the
community of property during marriage…
Goal:
Guide courts, strengthen family,
emphasize state interest in its preservation
&
People vs. Mora Dumpo
(1935)
FACTS: Dumpo married Hassan, and then
married Sabdapal without having her previous
marriage annulled. As a defense to an
allegation of bigamy, Dumpo claimed that her
2nd marriage was void because her father did
not consent thereto.
2. Extrinsic Validity of Marriage
This is governed by lex loci celebrationis.
Extrinsic validity covers questions on formalities
or external conduct required of parties for legally
valid marriage.
Art 2. Hague Convention on Celebration &
Recognition of Validity of Marriages: Formal
requirements governed by law of state of
celebration.
General rule: All states recognize as valid
marriages celebrated in foreign countries if the
formalities prescribed there were complied with.
HELD: Dumpo is not guilty of bigamy. The 2nd
marriage was null and void because the
consent of her father was not obtained. It is an
essential element of bigamy that the alleged
2nd marriage, having all the essential
requisites, would be valid were it not for the
existence of the first.
PHILIPPINES, Formal Requirements of Marriage
Art 3. FC sets the ff requirements:
1)
Valid marriage license except in cases
provided in Ch 2 of this title
Mariage ceremony w/c takes place w/
the appearance of contracting parties
before the solemnizing officer & their
personal declaration that they take each
other as husband & wife in the presence
of not less than 2 witnesses of legal age
Authority of solemnizing officer
42
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
Wong Woo Yu vs. Vivo
(1935)
FACTS: Wong Woo Yu alleged before the
Board of Special Inquiry that she was allegedly
married to a Filipino, Blas, in a ceremony in
China. The new Board ordered Wong to be
excluded from the country, on the ground that
her marriage to Blas was bereft of substantial
proof.
The Family
exceptions.
Code
(Art
26)
widens
these
A foreign marriage although valid in the foreign
country where it was entered into will be void in
the Philippines if:
1)
2)
3)
HELD: Wong should be excluded. Art.15 of
our Civil Code provides that the laws relating
to family rights or to the status of persons are
binding upon Philippine citizens, though
living abroad. Even if the marriage of Wong to
Blas before a village leader is valid in China,
the same is not one of those authorized in our
country. Under Sec. 4 of Gen. Orders 68 (now
Art. 71 CC), a marriage contracted outside the
Philippines which is valid under the law of the
country in which it was celebrated is also valid
here; but there was no proof presented on the
applicable law of China. Therefore it may be
presumed to be the same as our law.
4)
5)
6)
7)
either or both parties are below 18
it is bigamous or polygamous
a subsequent marriage is performed
w/out recording in the Civil Registry &
registry of Properties the judgment of
annulment or declaration of nullity of
first marriage, the partition o&
distribution of the properties of the
spouses & the delivery of presumptive
legitimes
there was a mistake as to identity of the
contracting party
one of the contracting parties was
psychologically incapacitated to comply
with the essential marital obligations
the marriage is incestuous
marriage is void by reason of public
policy
Note that the exceptions put in issue the parties’
capacity to enter into marrriage, thus, relating to
a substantive requirement.
Apt vs. Apt
(1947)
FACTS: The marriage of the Apts (both
Germans) was celebrated in Argentina by
proxy. The wife, a domiciliary of England,
filed a petition for the nullification of their
marriage on the ground that proxy marriages
are not valid in England. It is, however, valid
in Argentina.
Since the personal law of the parties governs
questions of intrinsic validity of marriages b/w
Filipinos abroad, the above enumerations are
exceptions to the lex loci celebrationis precisely
because they are controlled by lex nationalii.
3. Intrinsic Validity of Marriage
HELD: The marriage is valid. The English law
on marriage is locus regis actum. If a marriage is
good by the laws of the country where it is
effected, it is good all the world over, no
matter whether the proceeding or ceremony
which constituted marriage according to the
law of the place would or would not constitute
marriage in the country of domicile of one or
other of the spouses. Since the marriage was
performed in Buenos Aires and in accordance
with its laws, and since proxy marriage is only
a form of the ceremony and not an essential
requisite, the marriage should be upheld.
Intrinsic requirements refer to capacity or general
ability of a person to marry, for instances defined
by requirements of age & parental consent, but it
does not refer clearly to an individual’s being
permitted to marry a specific person or person of
a determinate class.
What law controls intrinsic requirements?
The parties’ personal laws—either domicile or
nationality.
Municipal laws of each state provides substantive
requirements of marriage.
Philippine Law sets the following substantive or
essential requisites:
Exceptions to Lex Loci celebrationis: The Civil
Code (Art 71) enumerates bigamous, polygamous
or incestuous marriages as exceptions to the lex
loci celebrationis rule.
43
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
1)
Legal capacity: must be 18 years of age
2)
Consent freely given: in the presence of
become valid by virtue of dissolution or
annulment of previous marriage)
& not barred by any impediment to
marry each other
2)
spouses were related to one another by
blood or by adoption, in the direct line
or as brother or sister
3)
one of spouses had not attained the
minimum age required for marriage nor
acquired the necessary dispensation
4)
one of the spouses did not have the
mental capacity to consent
5)
one of the spouses did not freely
consent to the marriage
an authorized solemnizing officer
Matrimonial consent: Parties are, at least, not
ignorant that the marriage is a permanent union.
Mixed marriages: the law that governs
substantive validity is national law of parties.
Art 38. FC.: Though valid in a foreign country
certain marriages may be void in the Philippines
on grounds of public policy, such as the ff:
1)
2)
3)
4)
5)
6)
7)
8)
9)
b/w collateral blood relatives, whether
legitimate or illegitimate up to the 4th
civil degree
b/w step-parents & stepchildren
b/w parents-in-law & children-in-law
b/w adopting parent & adopted child
b/w surviving spouse of adopting parent
& adopted child
b/w surviving spouse of adopted child
& adopter
b/w adopted child & legitimate child of
adopter
b/w adopted children of same adopter
b/w parties where one, w/ intention to
marry the other, killed the person’s
spouse or his or her own spouse
Sottomayor vs. de Barros
(1877)
FACTS: Sottomayor and de Barros are both
Portuguese and first cousins. Under Portuguese
law they are incapable of contracting marriage.
They were married in London. Sottomayor filed a
petition to have the marriage declared invalid.
HELD: The marriage is invalid. The law of a
country where marriage is solemnized must
decide all questions relating to the validity of the
ceremony by which the marriage is alleged to
have been constituted; but as regards questions
on personal capacity, it must depend on the law
of the domicile, and if the laws of any country
prohibit its subjects within certain degrees of
consanguinity from contracting marriage and
treats such as incestuous, this imposes on the
subjects a personal incapacity which continues to
affect them so long as they are domiciled in said
country and renders such marriage invalid
wherever it may have been solemnized.
Marriages Between First Cousins:
Marriage of 1st cousins is no longer incestuous
but still void ab initio on the ground of public
policy.
It is submitted that our prohibition against
marriage of 1st cousins be limited only to Filipino
nationals because many countries allow such
marriages.
In re May’s Estate
(1920)
FACTS: Fannie is Sam’s niece by half blood;
they are both Jewish and NY residents. NY
prohibits marriage between uncle and niece, so
they went to Rhode Island, where such
marriage is also prohibited except where the
parties are Jewish (the Jewish faith allow such
marriages). After the ceremony they went back
to NY to live there.
Marriages b/w foreigners whose national laws
allow marriage of 1st cousins should be
considered as valid in the Phil under the principle
that the lex nationalii controls capacity &
presumption in favor of validity of marriage, as
expressed in Art 220.
Hague Convention on validity of Marriages allows
a contracting state to refuse recognition of the
marriage if:
1)
HELD: The marriage is valid. The legality of a
marriage between persons sui juris is to be
determined by the law of the place where it is
celebrated. The general principle is that the
one of spouses was already married
(unless marriage has subsequently
44
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
rights dependent upon nuptial contracts are to
be determined by the lex loci, subject to 2
exceptions: 1) cases within the prohibition of
positive law, and 2) cases involving polygamy
or incest in a degree regarded generally as
within the prohibition of natural law. As to the
first exception, there is no “positive law” in
New York which serves to interdict the
marriage in Rhode Island of Sam and Fannie,
and as to the second exception, their marriage
was not offensive to the public sense of
morality, it being allowed by the Jewish faith.
Marriages Celebrated by a Consular Official
Art. 9 of the relevant Hague convention:
Marriage celebrated by a diplomatic agent or
consular official in accordance with his state law
shall be considered valid as long as it is not
prohibited by the state of celebration
Philippine law: Marriage of Filipino nationals shall
be officiated by Philippine consul general, consul
or vice consul (in w/c case the formal & extrinsic
requirements of a valid marriage license & due
publication & registration under Philippine law
have to be complied with).
Instances Where Recognition of Validity of
Marriage May be Withheld:
This is said to apply to marriage b/w Filipino
national & an alien provided the alien complies
with marriage requisites under his/her national
law.
Christianity prohibits polygamous & incestuous
marriages but care must be taken to confine
doctrine to cases deemed incestuous by general
consent of all Christendom.
Additional requirements for:
The state may resort to ultimate escape devicecontravention of a public policy to w/hold
recognition of validity of a foreign marriage.
1)
aliens - submission of a certificate of
legal capacity to contract marriage
issued by diplomatic/consular office
Rule: Marriages manifestly incompatible with the
ordre public of the state of nationality of parties
may be refused recognition.
2)
stateless
persons
or
refugeessubmission
of
affidavit
stating
circumstances showing legal capacity to
contract marriage
However, commentators argue that when the
non/existence of marriage is merely a preliminary
Q arising incidentally in a case involving an issue
not profaning mores of forum (such as tax,
property or succession law) the rule above should
not be applied.
4. Effects of Marriage
Personal Relations between the Spouses
These include mutual support, fidelity, respect,
cohabitation & right of wife to use husband’s
family name)
In ReDalip Singh: two women claimed that they
were lawfully wedded wives of Singh, a native of
India who died intestate in California. They claim
to have been lawfully married to him in India
over 50 yrs ago while domiciled there in
accordance w/ law of the Jat community.
What is the governing law? National law of
parties
If spouses are of different nationalities, generally,
the husband’s national law may prevail as long as
it is not contrary to law, customs, & good morals
of the forum.
Under California laws, only 1st wife recognized as
legal widow. Wives argue that the polygamous
marriages should be held valid on strength of Art
63 CC: “All marriages contracted w//out the
state, w/c would be valid by the laws of the
country in w/c the same were contracted are
valid in this state”.
Art 69 Family Code: Husband & wife have the
right to fix family domicile.
•
Court, for compelling reasons, may exempt
spouse from living with the other.
Court, citing English & American cases:
Polygamous marriages can be recognized in
English law “so as to confer on the ‘wives’ the
status of a wife for the purposes of Sec. 10 of
British Nationality & Status of Aliens Act or for
purposes of succession, & upon the children the
status of legitimacy.
Djumantan
vs. Domingo: Filipino marries
Indonesian. They go to Philippines w/ intention
of staying here permanently. Subject of petition:
Effect of marriage on wife’s right to stay in the
Philippines.
45
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
other a foreigner? It would still be governed by
There is no law guaranteeing aliens married to
Filipino citizens the right to be admitted, much
less to be given permanent residency, in the
Philippines.
Philippine law.
Change of nationality after Marriage
If one or both spouses change nationality
subsequent to marriage, property regime remains
unchanged because of principle of immutability.
“The fact of marriage by an alien to a citizen
does not withdraw her from operation of
immigration laws governing admission &
exclusion of aliens. Marriage of an alien woman
to Filipino citizen does not ipso facto make her a
Filipino citizen & does not excuse her from her
failure to depart from the country upon
expiration of her extended stay here as alien”.
Hague Convention on Matrimonial Property
Regimes. Art 7: The applicable law continues
notwithstanding any change of their nationality
or habitual residence.
Restatement 2nd:
The wife who lives w/ her
husband has the same domicile as his unless
special circumstances of wife make such result
unreasonable.
But, in Ch VIII on
authorities
consider
constructive domicile to
discrimination on basis of
extrinsic validity: refers to formal requisites,
apply lex loci celebrationis
intrinsic validity: refers to essential requisites,
apply personal law of the parties
Domicile, some legal
the
assignment
of
the wife as invidious
gender.
In Adong and Wong Woo Yu, the Court
did not apply the Philippine policy of
presumption of validity of marriage.
 Question: is a proxy marriage between
Filipinos in a state allowing such
marriages valid? Pangalangan: Yes,
because it is merely a formal requisite
(lex loci celebrationis apply)
________________

Property Relations of Spouses
Hague Conventions on law
Matrimonial Property:
The
Applicable
to
internal
law
designated by spouses before marriage or in
absence thereof the internal law of state in w/c
both spouses fix their habitual residence is the
governing law on matrimonial property regimes.
B.
Art 80. Family Code: In the absence of a contrary
stipulation in a marriage settlement, property
Divorce: Absolute or Limited
relations of spouses shall be governed by
Philippine laws, regardless of the place of the
Absolute: termination of legal relationship b/w
spouses by an act of law.
celebration of the marriage & their residence.
Limited: (Legal separation) separation form bed
& board w/c does not effect the dissolution of
marital ties. But it modifies the incidents of
marriage by relieving spouses of duty of living
w// each other.
This rule shall not apply:
1)
If both spouses are aliens
2)
With respect to the extrinsic validity of
contracts affecting property not situated
in the Philippines & executed in the
country where the property is located
3)
Divorce and Separation
This does not necessarily affect economic rights
& duties since the court may order one to provide
for support. For such purpose, it is essential that
court has JD over respondent spouse & the
property sought to be affected by decree.
With respect to the extrinsic validity of
contracts entered into in the Phil but
affecting property situated in a foreign
country whose laws require different
formalities for its extrinsic validity
Local law governs legal consequences of divorce
of spouses, nationals of same country, who
marry, are domiciled & divorce.
Art 80 generally follows lex rei sitae.
If any of above factors connected to another
state… conflicts problem arises.
What law will govern the property relations of
spouses where one is a Filipino citizen 7 the
Divorce jurisdiction:
46
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
Basis of JD of some countries: Domicile of one of
the parties or matrimonial domicile
o
Ratio: Divorce, being a matter of state concern,
should be controlled by “law of place w/ w/c
person is most intimately concerned, place where
he dwells.
Due process requires that forum court have a
substantive contact w/ the relationship w/c it will
decide won to dissolve.
Tenchavez vs. Escaño
(1965)
FACTS: Vicenta and Pastor were married
without the knowledge of her parents. Vicenta
went to the US to obtain a divorce, which was
granted by the Nevada Court; she married an
American
and
subsequently
acquired
American citizenship. Pastor sued Vicenta for
legal separation and damages. Vicenta’s
defense is that there was a valid divorce issued
by the Nevada court.
Hague Convention Relating to Divorce &
Separation: The granting of divorce or separation
must comply w/ the national law of spouses &
the law of the place where the application for
divorce is made.
Some laws in PRiL have made
1)
the right to separation or divorce
depend on the national law of the
spouses &
HELD: The divorce decree obtained in the US
is not valid, because at the time it was issued,
Vicenta, like Pastor, was still a Filipino citizen.
She was then subject to Philippine law.
Philippine law cannot recognize a foreign
decree of absolute divorce between Filipino
citizens, for this would violate declared public
policy.
2)
grounds for divorce subject to law of
forum
provided the parties were domiciled there.
Grounds for divorce are dictated by lex fori.
Thus, many states refuse to recognize foreign
grounds for divorce unless it corresponds w/ a
ground justified by forum law. This is followed
whether the traditional or policy centered choice
of law approach is used.
Van Dorn vs. Romillo
(1985)
FACTS: Van Dorn, a Filipina, married
American Upton. Ten years later they were
divorced in the US; subsequently, van Dorn
remarried. Upton filed an action against Van
Dorn in the Philippines, asking for an
accounting of certain alleged conjugal
properties.
1. Divorce decrees obtained
by Filipinos
Divorce decrees obtained abroad have no
validity, not recognized in Philippine jurisdiction.
HELD: The divorce decree is valid and
binding upon Upton. Even if divorce is not
valid in the Philippines for being contrary to
public policy, only Philippine nationals are
covered by the policy against absolute
divorces. Aliens may obtain divorces abroad,
which may be recognized in the Philippines
provided valid according to their national law.
BUT a marriage b/w a Filipino & a foreigner is
susceptible to divorce if the divorce was validly
obtained by the alien spouse (Art 26 par 2).
Effects:
1.
2.
Provision is to remedy the uneven status
of Filipino nationals whose alien spouses
obtained divorce abroad & remarried
while the Filipino spouse remained
married to them in eyes of Philippine
law.
alien is capacitated to remarry
Filipino spouse shall likewise have the
capacity to remarry under Philippine law
Effect of Provision (Art 26): partial recognition in
the Phil of absolute divorce.
o note: Divorce should be obtained only
by alien spouse. Otherwise, Art 26 is
inapplicable.
47
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
Hague Convention on Recognition of Divorce &
Legal Separation:
Pilapil vs. Ibay Somera
(1989)
FACTS: Pilapil and Geiling were married in
Germany, but were later divorced. A few
months later, Geiling filed a complaint for
adultery which was dismissed; it was refiled
by the fiscal.
A foreign divorce will be recognized in all
contracting states if at the date of institution of
proceedings:
HELD: Geiling has no legal standing to
commence the adultery case because the
person who initiates the adultery case must be
an offended spouse, meaning he must still be
married to the accused spouse at the time of
the filing of the complaint. Because of the
divorce decree, Geiling is no longer the
husband of Pilapil; hence he had no more legal
standing to commence the adultery case (no
longer an offended “spouse”).
a)
Respondent or petitioner
habitual residence there, or
had
his
b)
Both spouses were nationals of this
state, or
c)
If only the petitioner was a national, he
should have his habitual residence there
US Full Faith & Credit Clause of Constitution:
A
sister state has the duty to recognize a divorce
pronounced in a sister state, when both spouses
are domiciled there.
If only the plaintiff is domiciled there: Other
conditions (i.e. service of process to defendant)
must be fulfilled
Quita vs. Court of Appeals
(1998)
FACTS: Quita and Padlan were married in the
Philippines, but Quita filed for divorce in
California which was granted. She remarried
twice after the divorce. Upon Padlan’s death,
Quita made claims upon his estate as the
surviving spouse and heir of Padlan, alleging
that since Padlan was a Filipino citizen, he
remained married to her in spite of the divorce
decree.
Effect of Divorce Rendered by a Foreign Country:
not covered by Full faith & credit clause
o
but would be recognized under the
same circumstance that a sister state’s
divorce decree is given recognition.
paramount consideration: jurisdiction of foreign
court based on parties’ domicile.
Philippine Law on Recognition of Foreign Divorce
Decree: No provision on recognition of divorce
decree b/w non-Filipinos;
o but such will be recognized under
international comity, provided it does
not violate a strongly held policy of the
Philippines
HELD: Quita’s right to inherit from Padlan
depends on her citizenship at the time the
divorce was decreed. If she was no longer a
Filipino citizen at the time of their divorce, the
divorce would be valid as to her and will be
recognized in the Philippines, and she would
lose her right to inherit.
C.
Tenchavez: 2 Filipinos, divorced abroad
– not recognized in the Philippines (Art.
15 CC, nationality principle)
 Van Dorn: 1 Filipino, 1 foreigner,
divorced abroad – recognized (Art. 15
CC, estoppel)
 Pilapil: 1 Filipino, 1 foreigner –
recognized (nationality principle)
________________

Annulment and Declaration of
Nullity
Effect: Affects status & domestic relations of
parties.
Distinction from Divorce
2. Validity of Foreign Divorce
between Foreigners
48
Divorce
Annulment and
Nullity
The ground occurs
after
marriage
celebration
Based
on
defects
present at time of
celebration
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
Grounds for Annulment & Nullity:
o
States w/
approach:
celebrationis
o
Sample conflicts Annulment Case
traditional choice-of-law
follow the lex loci
States w/ policy-centered approach:
follow the law of state of marital
domicile (considered to have the most
significant interest in status of persons)
M&F, domiciliaries of STATE A, both 18 years
old
o
marry in STATE B w/out knowledge of their
parents
suit for annulment was brought in STATE C
(place of M’s residence)
o
State C can exercise JD over the case but what is the
governing law?
In both approaches, lex fori (which is crucial in
divorce) does not play substantial role because
the action turns on the validity of the marriage.
Note that in either traditional or policy-centered
approaches, lex fori is not used; recall that lex
fori can be used in divorce.
Both lex loci celebrationis and law of marital
domicile can provide jurisdictional basis, but only
one can be a choice-of-law in the determination
of the annulment decree.
•
Traditional choice-of-Law rules: will find sufficient
ground for the challenge
If the lex loci celebrationis
(STATE B) requires parental consent for a
valid marriage
•
Most Significant Relationship Approach: will not
yield a ground for annulment.
State C can conclude that since law of STATE
A (state of marital domicile) gives people
their age full capacity to marry, no ground for
annulment
The Choice of Law rule of STATE C will be irrelevant
Which states can claim adequate jurisdictional
basis to hear a conflicts annulment or nullity
case?
a)
b)
o
D. Parental Relations
state where marriage was celebrated
place of marital domicile
What law determines legitimacy of a child?
Personal law of parents - either domicile or
nationality.
Wheaton vs. Wheaton: Even a court which
acquires personal JD over parties can grant an
annulment case (US case).
Most countries: father’s personal law
German law: law of head of family
Law on parental relations include:
o Paternity
o Filiation
What law governs legitimacy of child in the
Philippines? National law of the parents.
If parents are of different nationality: national
law of father is controlling.
In the PHILIPPINES:
49
o
Personal law of the child is the national
law of the father if the child is legitimate
or legitimated.
o
Personal law of the child is the national
law of the mother if the child is
illegitimate.
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
o
Legitimacy of the child determined by
the national law of the father if both
parents are not Filipino.
Thus, persons eligible to adopt expanded
What law governs? lex domicilii
The adoption process affects status of parties,
necessarily governed by lex domicilii.
In the UNITED STATES:
as per Second Restatement On Legitimacy of the
American Law Institute
o
What if prospective adoptive parent is domiciled
in one state & the child is domiciled in another?
Child is legitimate if this is his status
under the local law where the parent is
domiciled when the child’s legitimacy is
claimed
OR
when
the
parent
acknowledged the child as his own.
Twin problems of jurisdiction and choice-of-law.
Parental Authority over the Child
-from concept of patria potestas of Roman law
o
If the main object of adoption is the
welfare of the child, the personal law of
the child is the best choice-of-law to
govern his rights
o
But the personal law of the child cannot
be successfully used to invoke
jurisdiction if his domicile is merely
constructive or if he is a citizen of a
state but he doesn’t reside there.
What law controls? Father’s personal law controls
rights & duties of parents & children.
o
o
Art. 211 FC: Reference to father’s
personal law may result in joint exercise
of parental authority
Art. 176 FC: Personal law could grant
parental authority to mother of
illegitimate children
Child’s personal law as basis for exercise of
jurisdiction weakened in situations where child’s
domicile is:
o merely constructive, or
o if he is a citizen of a state but he doesn’t
reside there (there is little basis for
court
to
protect
child
interest
competently)
Scope of Parental Authority:
1)
care & rearing
2)
action a parent may file against another
for child custody
3)
requirements for parental consent of
child’s marriage
E.
Adoption
The continuous movement of people in & out of
countries should also be factored in.
Can an alien adopt a child in the Philippines?
General Rule: not allowed
Reason: Different family orientation, cultures,
customs & traditions could pose problems of
adaptation for child.
Exceptions:
o Art 184. Aliens who have some
relationship
with
the
child
by
consanguinity or affinity
Definition: The act by which relations of paternity
& affiliation as legally existing b/w persons not so
related by nature.
It is a judicial act w/c creates b/w 2 persons a
relationship similar to that w/c results from
legitimate paternity & affiliation.
o
RA 8552 (Domestic Adoption Act Of
1998)
These two introduced significant changes in
adoption law.
Early societies considered it as a means of
perpetuating a house or cult threatened by
extinction.
Change Pertinent to Conflict Law
Original purpose: solace for childless or people
who lost children
1)
Recent time: broader, more humane aim
Social & moral purpose: extend protection of
society (in the person of adopter) to the orphan.
50
Aliens who have resided in the
Philippines for 3 years prior to the date
of filing the application for adoption,
and maintains residency until decree of
adoption is granted QUALIFIED TO
ADOPT
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
2)
Effects Of Adoption
Other requirements:
a) certification of legal capacity
b) certification that the State law
would allow entry of the
adoptee as an adopted child of
the adopter.
What law governs rights of adopted child & other
effects of legal adption? (law that governed the
creation of adoption)
2 different legal orders depending on which law
governed the creation of adoption:
These other requirements may be waived if the
adoptee is related by consanguinity or affinity to
the
o adopter, or
o his/ her spouse as specified by law.
RA 8043:
Before this, adoption of Filipino children by
foreigners was done pursuant to Rules &
Regulations on Foreign Adoption & bilateral
agreements.
1)
If Personal law of adopter applied—
same law governs effects of adoption.
2)
If personal law of child applied—such
law will cease to regulate the resulting
parent-child relations; it will yield to the
personal law of adopting parents.
Philippine courts:
o Adoption relates to a civil rights of
adopted child
o Does not effect changes in political
rights, including eligibility to acquire
adopter’s citizenship
RA 8043 regulate the adoption of Filipino children
by
o aliens, or
o Filipino
citizens
permanently
residing abroad.
In the Philippines, principles of enforcement &
recognition of a foreign judgment governs,
because the decree granting an adoption is in the
form of a foreign judgment.
RA 8043 was passed in compliance with our
treaty obligation as a signatory to the Hague
Convention on Protection of Children &
Cooperation In Respect of Intercountry Adoption.
Uggi Lindamand Therkelsen vs. Republic
(1964)
FACTS: Therkelsen (a German) and his wife
Erlinda (a Filipino), filed a petition to adopt
Erlinda’s natural child. The application was
denied on the ground that an alien cannot
adopt a Filipino unless the adoption would
make the Filipino minor a citizen of the alien’s
country.
Convention pursues modern concept of adoption:
After possibilities of adoption for placement of
child within state of origin have been exhausted,
intercountry adoptions may be placed in the best
interest of the child.
Republic of the Philippines vs. CA
(1993)
FACTS: Hughes is married to Lenita, a Filipina
who was later naturalized as an American
citizen. They filed a petition to adopt the 3
nephews and niece of Lenita, which was
granted.
HELD: The application should be granted.
Being a permanent resident here, Therkelsen is
not disqualified to adopt under our laws; to
deny the application on the above stated
ground would be to impose a further requisite
on adoptions by aliens beyond those required
by law. The citizenship of the adopter is a
matter political, not civil in nature, and the
ways in which it should be conferred lay
outside the ambit of the Civil Code.
HELD: Hughes is not qualified to adopt since
he does not fall under the exceptions in Art.
184 of the Family Code. While Lenita, as a
former Filipino, is qualified to adopt under
that provision, the adoption decree still cannot
be granted because of the requirement in Art.
185 that spouses must jointly adopt. They
cannot do this in CAB because Hughes is not
qualified under the law.
Ng Hian vs. Collector of Customs
(1916)
FACTS: Marcosa married Ng Chion Te. She
adopted his 2 children by a previous marriage
and brought one of them to the Philippines to
51
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
b)
study. The child, Ng Hian, was refused entry
into the Philippines.
HELD: Ng Hian may enter the Philippines by
virtue of being adopted by one who has a right
to do so. In the case of Ex Parte Fong Yim, it
was held that a Chinese merchant domiciled in
the US has the right to bring into this country
with his wife minor children legally adopted
by him in China, where it is shown that the
adoption was bona fide, and that the children
have lived as members of his family and have
been supported by him for several years.
In the Philippines, real and personal property are
“subject to the law of the country where it is
situated” (Art. 16 CC). a problem regarding
classification will arise only when the property is
located in a foreign country which has a law that
distinguishes between real and personal
property.
For real property, there is very little room for
choice of law, because of the emphasis on lex
situs.
Why?
1)
XIII. Choice of Law in Property
A.
Property physically a part of the
particular state, and that state can
exercise JD over it (traditional approach)
2) There is need for reliable records (to
protect the sanctity of records)
________________
The Controlling Law
The first issue to resolve in conflicts cases
involving property is whether it is a movable or
an immovable, because upon this determination
will depend the controlling legal system.
B.
Immovables: regulated by lex situs; underlying
this is the characterization of immovable property
as an isolated object of rights so that the
interests of various persons are determined by
the law of the place where the land is situated.
Capacity to Transfer or Acquire
Property
This is governed by the law of the place where
the property is located.
Llantino vs. Co Liong Chong
(1990)
FACTS: The Llantinos leased real property to
Chong, a Chinese national (but subsequently
naturalized as a Filipino), for 60 years. The
Llantinos filed an action to quiet title, claiming
that the lease contract was invalid for
circumventing the constitutional prohibition
on the acquisition of land by aliens.
The connecting factor is the immovable itself and
not the parties concerned.
Movables: not necessarily governed by the lex
situs; its transfer may be controlled by the a) lex
domicilii, b) lex situs, or c) lex loci actus (the
proper law of transfer).
Lex domicilii: the rights over the movables are
governed by the law of the owner’s domicile.
HELD: The lease contract was valid, and
Chong had the right to hold by lease the
property involved although at the time of
execution of the contract, he was still a Chinese
national. In CAB there was no option to buy
the leased property in favor of Chong. There is
nothing in the record to indicate any scheme to
circumvent the constitutional prohibition.
Lex situs: the state where the property is
situated has the sole power to decide the validity
and effects of the transfer of property. Also, the
parties’ legitimate expectations are protected.
The rationale for this is that being physically part
of the country, it should be subject to the laws
thereof. The situs is the place most closely and
significantly related to the issue in question.
Alternatives to lex domicilii and lex situs:
a)
the proper law of the forum: law of the
state which has the most real
connection with the transfer
Aliens are not completely excluded by the
Constitution from use of lands for residential
purposes. Since their residence in the
Philippines is temporary, they may be granted
temporary rights, such as a lease contract
Lex loci actus: law of the place where
the transaction was completed
52
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
which is not forbidden in the Constitution. The
only instance where a lease contract may be
considered invalid is where there are
circumstances attendant to its execution which
are used as a scheme to circumvent the
constitutional prohibition.
Liljedahl vs. Glassgow
(1921)
FACTS: Bailey secured a debt payable in Iowa
to Liljedahl; as security, he mortgaged his land
in Colorado. Bailey sold this land to Glassgow,
with the provision in the deed of sale that the
grantee agrees to pay the mortgagee.
Glassgow sold the land to a third party. Under
Iowa law, Glassgow became bound to pay the
mortgage, but not under Colorado law.
Cheesman vs. IAC
(1991)
FACTS: Thomas Cheesman (an American) was
married to a Filipina, Criselda. The spouses
later separated; but Thomas brought this
action to annul the sale of real property made
by Criselda in favor of Padilla. He alleged that
the sale is void for lack of his consent. The
property sold was bought by Criselda using
her personal funds, and was registered in her
name only.
HELD: Iowa law should apply, and Glassgow
should pay Liljedahl. Instruments of
conveyance, as they relate primarily to title,
are to be construed according to the law of the
situs. But personal covenants or agreements in
instruments of conveyance will be given effect
according to the law of the place where the
same is executed and to be performed.
HELD: The sale was valid. He has no capacity
to question the sale of the property by his wife
on the theory that in doing so he is merely
exercising the prerogative of a husband in
respect of conjugal property. This would
permit
indirect
controversion
of the
constitutional prohibition. If the property were
to be declared conjugal, this would accord to
the alien husband an interest and right over
the land, which is not granted to him under
the Constitution.
C.
2)
the essential validity of the transfer
(unless the lex intentionis is clearly
established)
3)
the effects
properties
of
the
conveyance
testate or intestate succession and
capacity to succeed, which are governed
accidental.
Also, when the issue involves considerations
other than the validity and effect of the transfer
itself, the courts may look to the law of another
state which has a real interest in applying its law.
or
Rudow vs. Fogel: since the issue did not relate to
land title but to whether the conveyance would
result in a constructive trust among family
members, the law applicable is the law of the
domicile of the trustor and trustee instead of the
lex situs of the property.
D. Exceptions to the Lex Situs Rule
3 Exceptions to the Lex Situs rule:
1)
3)
Under a policy-centered approach, the forum
court is not bound to look to the law of the situs
when the situs of the movable property at the
time of the transfer was insignificant or
The lex situs law applies to the following:
formalities of a contract to convey
property
in contracts where real property is
offered by way of a security for the
performance of an obligation such as
loan, where the security is merely an
accessory contract (the principal
contract is governed by the rules on
ordinary contract, while the accessory
contract on the land is governed by the
rule of lex situs)
by the national law of the decedent
Extrinsic and Intrinsic Validity of
Conveyances
1)
2)
where the transaction does not affect
transfer of title to or ownership of the
land (proper law: lex intentionis or lex
voluntatis)
E.
53
Situs of Certain Properties
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
1. Situs of Personal Property
for Tax Purposes
his creditor, as he was in the state where the
debt was contracted.
The maxim mobilia sequuntur personam cannot
be applied to limit the right of the state to tax
property within its JD. It yields to established
facts of legal ownership, actual presence, and
control elsewhere, and cannot be applied if it
would result in inescapable and patent injustice.
Prof. Beale: this decision did injustice to the
creditor, as he has no power to fix the personal
presence of his debtor at one place or another. It
is unjust to submit the creditor’s claim to the
accident of the debtor’s presence in one state or
another.
2. Situs of Money
4. Situs of Corporate Shares
of Stocks
Leon vs. Manufacturers Life Insurance: having
been endorsed in an annuity in Canada under a
contract executed in that country, Canada was
the situs of the money, hence the probate court
of Manila has no JD over the funds.
Under the Corporation Code (Sec. 63), shares of
stock are personal property and may be
transferred by delivery of the certificate or
certificates indorsed by the owner or his attorney
in fact. But such transfer shall not be valid until
recorded in the books of the corporation in the
manner provided.
3. Situs of Debts
2 Kinds of Movable Property:
1)
choses in possession – embraces all
types of tangible physical objects
2)
choses in action – refers to intangible
objects
a)
b)
CIR vs. Anglo California National Bank
(1960)
FACTS: The Collector of Internal Revenue
assessed deficiency income taxes against
Calamba Sugar Estates for the capital gains on
the sale of Pampanga Sugar Mills shares of
stock. The sales were conducted in SF,
California, and payments were made there.
mere rights of actions
rights
represented
by
a
document (capable of delivery
and susceptible to negotiation
as a separate legal entity)
HELD: CSE not liable for income tax on the
capital gains. The government cannot impose
income taxes on capital gains where the sale
took place outside its territorial JD. Foreign
corporations may be levied income taxes only
on income derived from sources within the
Philippines. With respect to capital gains, the
place of the sale (which in CAB is California) is
also the place or source of the capital gain.
Harris vs. Balk
(1905)
FACTS: Harris and Balk are both North
Carolina domiciliaries. Harris owed Balk a
sum of money. When he was in Baltimore he
was served a writ of garnishment, it appearing
that Balk has a debtor there. He paid pursuant
to the writ, but when he returned to N.
Carolina, Balk sued him for recovery of his
indebtedness. Harris pleaded the recovery of
the Maryland judgment.
F.
Patents, Trademarks, Trade Name,
and Copyright
The Philippines is a party to the Union
Convention for the Protection of Industrial
Property; said convention states in Art. 8 that a
“trade name shall be protected in all the
countries of the Union without the obligation of
filing of registration, whether or not it forms part
of the trade name.”
HELD: The attachment of Harris’ debt is valid,
and the North Carolina court should give
credit to the Maryland judgment. The
obligation of the debtor to pay his debt clings
to and accompanies him wherever he goes. He
is as much bound to pay his debt in a foreign
state when therein sued upon his obligation by
54
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
Western Equipment and Supply Co. vs. Reyes;
issuance of the xxx writ will depend on actual
use of their trademarks in the Philippines.
although Western equipment has not done
business in the Philippines, it has the right to
protect its reputation. The right to the use of the
company’s corporate and trade name is a
property right which may be asserted against the
whole world.
XIV. Choice of Law in Contracts
Contract: meeting of the minds between 2
persons whereby one binds himself, with respect
to the other, to give something or render some
service. Parties are bound not only to those
expressly stipulated but also to all the
consequences which according to their nature,
may be in keeping with good faith, usage and
law.
As a gen. rule, unless provided by law
or in the agreement, a contract is obligatory in
whatever form it may have been entered into
provided that all the essential requisites for
validity are present.
RA 8293 (Intellectual Property Code): applicant
cannot register marks “well known internationally
and in the Philippines, whether or not it is
registered here, xxx and is used for identical or
similar goods or services.”
Under Sec. 3 of the IPC, any foreign corporation
which is a national or domiciliary of a country
which is a party to a convention, treaty or
agreement relating to intellectual property rights
to which the Philippines is also a party or extends
reciprocal rights to our nationals by law “shall be
entitled to benefits to the extent necessary to
give effect to any provision of such convention…”
Principal purposes of contract:
1. protect the reasonable expectations of the
parties to the contract
2. secure stability in commercial transactions
Philips Export vs. CA
(1992)
HELD: A corporation’s right to use its
corporate and trade name is a property right, a
right in rem, which it may assert and protect
against the world in the same manner as it
may protect its tangible property, real or
personal, against trespass or conversion. It is
regarded, to a certain extent, as a property
right and one which cannot be impaired or
defeated by subsequent appropriation by
another corporation in the same field.
A.
Contracts
Element
Involving
a
Foreign
States, in their municipal laws, have different
rules on the formalities of a contract, the capacity
of parties, and the essential requisites for the
intrinsic validity of contracts, interpretation and
the law governing execution. Forum court should
be aware if there is a law that parties have in
mind when they entered into a contract.
Interpretations of contracts are applied only
when the lex loci intentionis cannot be
ascertained.
Emerald Garment Mfg. vs. CA
(1995)
FACTS: H. D. Lee Co., a foreign corporation,
filed a petition for cancellation of registration
of the trademark “Stylistic Mr. Lee” used on
items of clothing by Emerald Garments,
alleging that it so closely resembled H. D.
Lee’s trademark as to cause confusion, mistake
and deception on the public as to the origin of
the goods.
Unlike family law, contract law does not reflect
strong state policies or values.
B.
Extrinsic Validity of Contracts
Lex loci celebrationis governs the formal or
HELD: A foreign corporation may have the
capacity to sue for infringement irrespective of
lack of business activity in the Philippines on
account of Section 21-A of the Trademark Law
but the question of whether they have an
exclusive right over their symbol as to justify
extrinsic validity of contracts. A contract is valid
as to form if in accordance with any form
recognized as valid by the law of the country
where made, and that no contract is valid which
is not made in accordance with the local form.
Art 17, CC
55
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
performance are determined by lex loci solutionis
because it is undoubtedly related to the contract
in a significant way.
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.
As to Contracts entered into by cablegram, telex
or fax: Art. 1319, CC states that acceptance
made by letter or telegram does not bind the
offeror except from the time it came to his
knowledge. The contract is presumed to have
been entered into the place where the offer was
made.
C.
Macmillan & Bloedel vs. Valderama & Sons
(1964)
FACTS: Valderama & Sons, thru an n agent,
entered into a contract for purchase of railroad
equipment with Macmillan in Canada.
Valderama failed to get an import license
because the Import Control Comm failed to act
on his application. Macmillan suffered
damages because it had to cancel the freight
engagement.
Intrinsic Validity of Contracts
Intrinsic validity refers to nature, contents and
effects of the agreement.
HELD: Lex loci solutionis applies. The general
rule governing the validity & construction of a
contract & the rights and liabilities thereunder
is that the law of the place of performance
applies.
Art. 1318, CC: requisites of a contract
a.
b.
c.
consent of the contracting parties
object certain
cause of the obligation
In case of conflict in determining validity,
nature and obligation and effect of contract, lex
loci solutionis prevails over lex loci contractus.
There are 3 possible laws that will govern
intrinsic validity of contracts:
1. law of the place of the making
2. law of the place of performance
3. law intended by the parties
The laws of Canada, which is the place of
performance, should apply. The failure of the
Import Control Comm. to act on the
application of import license cannot constitute
a legal excuse for his failure to perform his
obligations under the contract.
1. Lex Loci Contractus
This refers to the law of the place where the
contract is made. This is the place where the last
act is done which is necessary to bring the
binding agreement into being so far as the acts
of the parties are concerned.
3. Lex Loci Intentionis
This refers to the law intended by the parties.
When the parties stipulate that the contract be
governed by a specific law, such will be
recognized unless there are cogent reasons for
not doing so e.g. the choice-of-law provision is
contrary to a fundamental policy of the forum.
Advantages:
a)
relative ease in establishing
place of contracting
b)
in applying it consistently,
certainty and stability are
achieved.
Also construction and interpretation of contracts
may be agreed upon by parties.
Disadvantage: it will lead to unjust results when
the place of making is entirely incidental or
casual and has no significant relationship with
the contract or its performance.
Art 1306, CC
The contracting parties may establish such
stipulations, clauses, terms and conditions as
they may deem convenient, provided that they
are not contrary to law, morals, good customs,
public order or public policy.
2. Lex Loci Solutionis
This refers to the law of the place of the
performance. All matters relating to time, place,
manner
of
performance,
sufficiency
of
performance and valid excuses for non-
Art, 1370, CC
If the terms of the contract are clear and leave
no doubt upon the intention of the contracting
56
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
parties, the literal meaning of the stipulations
shall control.
Compagnie de Commerce vs. Hamburg
Amerika
(1917)
FACTS: Compagnie (french) and Hamburg
(Germany) entered into a charter party to
transport C’s goods from Saigon- Europe.
Because of the impending war between France
& Germany, the ship went to Manila because
Saigon is a French port. C filed for breach of
contract. H contested the jurisdiction of Phil
courts to try the case because the contract had
a clause directing the settlement of disputes
first to a Board of Arbitration in England.
The law looks at the acts of the parties and the
surrounding circumstances which may possibly
have exerted some influence upon their actions
and then assumes that their intentions are in
harmony with such acts and circumstances.
Parties are presumed to contemplate to enter
into a valid contract. The court should apply the
law that will sustain the contract.
D. Capacity to Enter into Contracts
HELD: Phil. courts have jurisdiction. The
parties are free to waive the stipulation if they
so desired.
The capacity to enter into contracts is governed
by the rule on status and capacity (personal law).
In countries that follow the nationality principle,
the national law prevails (art. 15, CC). In
countries that follow the domiciliary principle, law
of their domicile governs.
E.
Phil courts cannot be ousted of their
jurisdiction by the contractual stipulation in
the absence of averment and proof that under
the law of England (place of contracting),
compliance with, or an offer to comply with
such a stipulation constitutes a condition
precedent to the institution of judicial
proceeding for the enforcement of the contract.
Besides, Hamburg appeared and answered
without objecting to the court’s jurisdiction; it
also sought affirmative relief.
Choice of law Issues in Conflicts
Contracts Cases
1. Choice of Forum Clause
The parties may stipulate on the venue of the
suit in case of litigation concerning the contract.
It is a general rule that plaintiff has the option to
choose the venue where the suit is to be filed in
action in personam. However, a case arising from
the contract will be litigated only in the forum
chosen by the parties if the choice of forum
clause specifically identifies it as the only venue.
King Mau vs. Sycip
(1954)
FACTS: King Mau entered into an agency
agreement with the Sycip in New York. King
mau was able to sell 1,000 tons of coconut oil.
KM brought an action to collect commission
from the sale. Sycip claimed that the Phil court
has no jurisdiction as the contract was entered
in New York.
Sec. 80, Sec. 3, Restatement Second. If the
parties have agreed in writing that an action shall
on a controversy be brought only in another state
and it is brought in a court of this state, the court
will dismiss or stay the action, unless:
1.
2.
3.
4.
5.
HELD: Phil court has jurisdiction. A nonresident may sue a resident in the courts of
this country where the defendant may be
summoned and his property leviable upon
execution in case of a favorable, if final and
executory judgment.
the court is required by statute to
entertain the action
plaintiff cannot secure effective
relief in other state for reasons
other than delay
the other state would substantially
be a less convenient place of trial
the agreement as to place of action
was obtained by misrepresentation,
duress, abuse of economic power
or other unconscionable means
it would be unfair or unreasonable
to enforce the agreement
It is a personal action for the collection of a
sum of money which the CFIs have
jurisdiction to try and decide.
57
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
HSBC vs. Sherman
(1980)
FACTS: HSBC granted Eastern Book Supply
an overdraft secured by the directors of the
latter. Eastern failed to pay. HSBC filed suit in
RTC. The defense of the directors is that Phil
courts have no jurisdiction because in the
Guarantee Agreement, it was provided that
Singapore shall have jurisdiction over all
disputes arising therein.
The Bremen vs. Zapata
(1972)
FACTS: Zapata, a Houston company, entered
into a contract of towage with Unterweser, a
German corp. Contract contained a forum
selection clause which provides that any
dispute arising must be treated before London
courts.
Zapata filed a suit in admiralty against
Unterweser for breach of contract and
damages in Florida District Court. Unterweser
filed motion to dismiss for lack of jurisdiction
citing the forum-selection clause.
HELD: Phil courts have jurisdiction. The
parties did not stipulate that only the courts of
Singapore, to the exclusion of all the rest, has
jurisdiction. Neither did the clause in question
operate to divest Phil. courts of jurisdiction.
HELD: Florida court has no jurisdiction. As a
rule, a forum clause should control absent a
strong showing that it should be set aside.
Court should enforce the forum clause
specifically unless Zapata could clearly show
that
Jurisdiction is defined as the right of a State to
exercise authority over persons and things
within its boundaries subject to certain
exceptions. This authority is exclusive within
and throughout the domain of the State.
a.
Pangalangan: HSBC case is disappointing—why
did the courts not recognize the choice of forum
clause? Courts are “turf-conscious”; for PRIL to
progress, there is a need for each country to give
up some of its exercise of sovereignty.
_______________
b.
c.
d.
2. Contracts with Arbitration
Clause
Puromines vs CA
((1993)
FACTS: Puromines and Philip Bros. entered
into a contract of sale with an arbitration
clause. Puromines filed for complaint in RTC,
Manila. Philip Bros. filed a MTD on the basis
of an arbitration clause.
enforcement would be unreasonable and
unjust or
that the clause was invalid for such
reasons as fraud or overreaching or
if enforcement would contravene a strong
public policy of the forum in which suit is
brought, whether declared by a statute or
by judicial decision or
if the chosen forum is seriously
inconvenient for the trial of the action. But
if the parties contemplated the claimed
inconvenience, it should not be heard to
render the forum clause unenforceable.
The CAB involves a freely negotiated
international commercial contract between the
parties. As noted, selection of a London forum
was clearly a reasonable effort to bring vital
certainty to this int’l transaction and to
provide a neutral forum experienced and
capable in the resolution of admiralty
litigation.
HELD: Arbitration clause is valid. Puromines
derives its right from the bill of lading together
with the sales contract & it is bound by the
provisions and terms of the bill of lading and
of the arbitration clause incorporated in the
sales contract.
3. Adhesion Contracts
Adhesion contract is one that is not negotiated by
the parties having been drafted by the dominant
party and usually embodied in a standardized
form. It is called a contract of adhesion because
the participation of 1 party is limited to affixing
her signature.
The courts will look with favor upon such
amicable settlements (arbitration) and will
only interfere with great reluctance to
anticipate or nullify the action of the arbitrator.
58
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
Specific Instances where court disregarded the
adhesion contract:
Pan Am World Airways vs. Rapadas
(1992)
FACTS: Rapadas’ samsonite was lost and Pan
Am offered to settle the claim for $160.
Rapadas refused and filed an action in court.
The defense of Pan Am is that the claim is
subject to the Notice of baggage Liability
Limitations contained in the passenger ticket.
HELD: The liability is limited by the Notice of
Baggage liability. Although the ticket is a
contract of adhesion, it does not offend against
the policy of the law forbidding one from
contracting against his own negligence. The
one who adheres to the contract is in reality
free to reject it entirely. Court finds the
provisions in the plane ticket sufficient to
govern the limitations of liabilities of the
airline for loss of luggage. The passenger,
upon receiving his plane ticket, was expected
to be vigilant insofar as his luggage is
concerned.
1)
when the party is not literate in the
language
of
the
contract
with
knowledge of what was intended
2)
when there is undue advantage made
by a dominant party usually a huge
corporation or a business monopoly
3)
when there is ambiguity in the adhesion
contract, it must be resolved contra
preferentum and in favor of the party
impugning it
4)
when it is subversive of public policy
when the weaker party is imposed upon
in dealing with the dominant bargaining
party and is reduced to the alternative
of taking it or leaving it, completely
deprived of the opportunity to bargain
on equal footing
Sweet Lines vs. Teves: Petitioners assail the
validity of the tickets issued by Sweet Lines.
HELD: The adhesion contract is void. It is not just
and proper to expect that the passengers
examined their tickets from the crowded counters
esp. if there are a number of conditions in fine
print. Also, shipping companies, esp. inter-island
vessels, possess a virtual monopoly over the
business of transporting the passengers between
ports covered by their franchise. Lastly, the court
took judicial notice of the fact that these
passengers come from low-income groups and
are less literate and who have little or no choice
but to avail of petitioner’s vessels.
PAL vs. CA
(1996)
FACTS: Mejia shipped through PAL 1
microwave oven from San Francisco to Manila.
Upon arrival, she discovered that the front
glass door was broken and the oven could not
be used. Mejia filed action against PAL. PAL
denied liability and alleged that it acted in
conformity with the Warsaw Convention.
HELD: Although the airway bill is binding
between the parties, the liability of Pal is not
limited on the provisions of the airway bill.
While the Warsaw Convention is law in the
Philippines, the Philippines being a signatory
thereto, it does not operate as an exclusive
enumeration of the instances when a carrier
shall be liable for breach of contract or as an
absolute limit of the extent of liability nor does
it preclude the operation of the Civil Code or
other pertinent laws.
Parties may include any stipulation as long as
such stipulations do not violate public policy or
morals of the forum.
Lessons:
 PanAm: not all contracts of adhesion are
against public policy; balancing of
interests (airline vs. passenger)
 PAL vs. CA: when there is ambiguity in
adhesion contract, construe against the
drafter.
________________
Also, the willful misconduct and insensitivity
of the officers of PAL in not attempting to
explain the damage despite due demand and
the unexplained delay in acting on her claim,
amounted to bad faith and renders
unquestionable its liability for damages.
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COURSE OUTLINE IN CONFLICTS OF LAW
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4. Special Contracts
or loss or damage of cargo. The Phils. became a
member thereof in 1951.
In sales or barter of goods, the law of the place
where the property is located will govern ( lex
situs).
Liabilities of the Carrier:
A simple loan granted by financial institutions is
governed by the law of the permanent place of
business. But if granted by a private individual, it
is governed by the law of the place where the
loan was obtained.
a.
b.
In contracts of pledge, chattel mortgage and
antichresis, the extrinsic and intrinsic validity of
the contracts are governed by lex situs.
c.
Carriage of Goods by Sea
d.
American President Lines vs. Klepper
(1960)
FACTS: K shipped on board APL’s vessel
personal effects. Because of damage to the
effects, K sued APL. CA affirmed CFI’s finding
of liability but awarded damages on the basis
of the COGSA.
e.
HELD: COGSA does not apply but the Civil
Code. Article 1753 of the Civil Code provides
that the law of the country to which the goods
are to be transported shall govern the liability
of the common carrier in case of loss,
destruction or deterioration. Under Article
1766, "In all matters not regulated by this
Code, the rights and obligations of common
carriers shall be governed by the Code of
Commerce and by special laws," and in the
Civil Code there are provisions that govern
said rights and obligations. Although Section 4
(5) of the Carriage of Goods by Sea Act states
that the carrier shall not be liable in an amount
exceeding $500.00 per package unless the
value of the goods had been declared by the
shipper and inserted in the bill of lading, this
is merely suppletory to the provisions of the
Civil Code.
in case of death or wounding- carrier’s
liability is not more than $75,000.
The limits do not apply when the damage is
caused by the act or omission of the carrier,
his servants or agents, done with the intent
to cause damage or recklessly and with
knowledge that damage would probably
result, provided that the agent was acting
within the scope of his employment.
In case of loss or damage to baggage $20/kilo
for
checked
baggage
and
$400/passenger for unchecked luggage
unless a higher valuation is agreed upon by
the parties
Prescription. Action must be brought within 2
years from date of arrival at the destination,
or from date which the aircraft ought to
have arrived or from the date on which the
transportation stopped.
Venue. Any action for damages may be
brought either in the court of the
1. domicile of the carrier
2. principal place of business
3. place of business where the contract
was made
4. place of destination
5. Successive Carriers. Each of the
successive carriers is bound by the rules
on the Convention and shall be deemed
to be one of the contracting parties
insofar as the part of the transportation
which
is
performed
under
his
supervision. But for goods or baggage,
the passenger or consignor has a right
of action against the first carrier and the
consignee who is entitled to receive the
same, against the last carrier. They
must take action against the carrier who
performed the transportation during
which the loss, damage or delay took
place.
Lopez vs. Pan Am
(1965)
FACTS: Despite several confirmations, Sen.
Lopez and his family failed to get 1st class seats
and were constrained to board as tourist
passengers of PanAm. CFI, Rizal awarded
damages in their favor. Pan Am admitted the
breach of contract but not the finding of bad
faith
Contracts for International Air Transportation
The Warsaw Convention and amendments to the
same regulate and establish uniform rules and
regulations on the liability of international airline
carriers in cases of death, injuries of passengers
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COURSE OUTLINE IN CONFLICTS OF LAW
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boarded. He sued action for damages against
AA in RTC. AA claimed that the issuance of a
new ticket created a separate contract of
carriage from the one with SA and therefore,
under Art. 28, RTC had no jurisdiction over
the case against AA.
HELD: Pan Am acted in bad faith. Pan Am
misled the Lopezes into believing the
reservations were valid and was prompted by
self-interests in dong the same (precluding the
Lopezes to secure other tickets). Also, there
was negligence by its employees that were so
gross and reckless as to amount to malice and
bad faith, e.g. erroneous cancellation of
reservation, not confirming reinstatement of
reservation, confirming reservation even if EE
had knowledge that they were merely
waitlisted and not notifying Lopezes of the
cancellation.
HELD: RTC had jurisdiction; the new ticket is
not considered as separate from the one issued
by SA but the contract of carriage constitutes a
single operation. SA & AA are members of the
IATA and under the general pool partnership
agreement they act as agents of each other in
the issuance of tickets to contracted
passengers. When AA exchanged the ticket, it
entered it in the IATA clearing house and
undertook to transport M. It thereby assumed
the obligation to take the place of the principal
carrier originally designated and constituted
itself as an agent of SA. The number of tickets
issued does not detract from the oneness of the
contract of carriage as long as the parties
regard the contract as a single operation.
KLM Royal Dutch vs. CA
(1975)
FACTS: Mendozas went on a world tour. KLM
issued the tickets for the whole trip. Their
coupon for Aer Lingus was marked RQ. Thru
KLM’s help, reservations were made in the
Aer Lingus flight. Upon arrival, only the
minors were allowed to board. Mendoza sued
for breach of contract and for damages bec. of
the humiliation they suffered. KLM denied
liability on the basis of Art. 30 of the Warsaw
Convention (successive carriers liability)
Chiok vs. China Airlines
FACTS: Chiok purchased ticket from CAL
exclusively endorsable to PAL. While in
Hkong, his flight was confirmed by both CAL
and PAL attaching their respective stickers. On
the day of his flight to Manila, he was
informed by a PAL employee that he was not
in the computer list so he was not allowed to
board. Using another CAL ticket, he was able
to return to Manila. C sued CAL. CAL denied
liability as the carriage was performed by
PAL.
HELD: Art. 30 does not apply and KLM
should be accountable for the tortious act of
Aer Lingus.Art. 30 presupposes either an
accident or delay and not the situation in CAB.
Although the tickets provide that KLM’s
liability for damages is limited to occurrences
in its own airlines, this provision was printed
in very small letters such that a magnifying
glass is needed to read it. It would be unfair to
charge Mendozas of automatic knowledge and
it is the duty of KLM to inform them of the
conditions prescribed in the tickets or at least
make sure that they read them before they
accepted the tickets. This it failed to do.
HELD: Cal is liable. The ruling in KLM is
applicable. The contract was between CAL and
C, with the former endorsing to PAL the HKMla segment. This can be treated as a single
operation under Art. 15, IATA Rules and Art.
1 of the Warsaw Convention
Art. 1, Sec. 3 WC: transportation to be
performed by several successive carriers shall
be deemed to be one undivided transportation,
if it has been regarded by the parties as a
single operation, whether it has been agreed
upon under the form of a single contract or of
a series of contracts.
American Airlines vs. CA
(2003)
FACTS: Mendoza bought conjunction tickets
from Singapore Airlines. Although it was not a
participating airline, AA exchanged the
unused portion of the ticket for a one-way
ticket to New York. However, Mendoza was
prevented by AA’s security officers from
boarding until all the other passengers have
Art. 15 IATA: carriage to be performed by
several successive carriers under one ticket, or
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
under a ticket and any conjunction ticket
issued therewith, is regarded as a single
operation.
Pal acted as carrying agent of CAL, thus, CAL
cannot evade liability.
Courts should localize the contract by examining
the contacts it has with a state relative to the
cogency to the issue. Example: For contracts
involving liability for destruction of goods in
transit, the state of the most significant
relationship is the state of destination.
Santos III vs. Northwest Airlines
(1992)
FACTS: Santos bought a roundtrip (SF-ManilaSF) ticket from NW airlines office in SF.
Despite previous confirmations, he was
informed that he had no reservation on his
trip. He sued NW for damages in RTC Makati.
NW filed MTD for lack of jurisdiction.
In the absence of an effective choice of law,
courts applying a policy-centered approach will
apply its own law when there are significant
contacts with the transaction. Once these exist,
the forum has a real interest in applying its own
law and such would not be fundamentally unfair
to the parties. The court should also consider the
legitimate expectations of the parties.
HELD: Phil court has no jurisdiction to hear
the case under Art. 28 of the Warsaw
Convention. This article enumerates the places
where action must be filed, to wit:
1. Domicile – Minnesota, USA (domicile
must be understood in the English sense –
place of incorporation)
2. principal place of business – Minnesota
3. place of business where contract is made –
San Francisco
4. place of destination – San Francisco (not
Manila because it was merely an agreed
stopping place, SF is still the ultimate
place of destination
G. Limitations to Choice of Law
Distinction between KLM and China Air: in KLM,
KLM was the only company the passenger dealt
with; in Chiok, it was alleged that Chiok himself
(passenger) requested for the PAL booking. It
can then be argued that CAL should not be held
liable.
________________
F.
6.
if the law selected has no connection at
all with the transaction or the parties
2)
if it ousts the jurisdiction which the
court has already acquired over the
parties and the subject matter
3)
if it affects a public policy or the matter
is heavily impressed with public interest
4)
in case of confession-of-judgment
clauses (waives the debtors right to
receive notice or authorizes entry of
judgment)
XV. Choice of Law in Wills, Succession and
Administration of Estates
Will or testament: act whereby a person is
permitted, w/ formalities prescribed by law, to
determine to a certain extent the distribution of
his estate to take effect after his death.
The Applicable law in the absence
of an Effective Choice
It is a disposition made by a competent testator
in the form prescribed by law of property over
which he has legal power of disposition
According to the 2nd Restatement, in the absence
of an effective choice of law, these factors will be
considered in determining the state with which
contract has its most significant relationship
1.
2.
3.
4.
5.
1)
Conflicts of Law Perspective:
Will: an involuntary transfer of property, because
it comes into effect only upon death of owner.
Death is involuntary, thus making a will is an
involuntary transfer of property.
place of contracting
place of negotiating of the contract
place of performance
situs of the subject matter of the contract
domicile, residence, nationality, place of
incorporation and place of business
place under whose local law the contract will
be most effective
Wills are governed by the “proper law”
o common law- law of domicile of testator
o civil law- national law of testator
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
in which he resides, or according to the
formalities observed in his country, or in
conformity with those which this Code prescribes.
(n)
A. Extrinsic Validity of Wills
Filipino national making a will abroad may comply
with:
o lex nationalii (no express provision) or
o lex loci celebrationis (Art 17, 815)
Article 817. 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.
(n)
Pertinent Conflict-of-law rules:
(referring to law of place where will was
executed as law governing forms & solemnities of
will)
Art 17: The forms and solemnities of contracts,
wills, and other public instruments shall be
governed by the laws of the country in which
they are executed.
It cannot be assumed that the Code places a
Filipino citizen in a worse position than an alien in
relation to our law.
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.
The Code should have expressly stated this
considering general provision in Art 17.
In re Estate of Johnson
(1918)
FACTS: Ebba Ingeborg sought to annul the
probate of the will of his father Emil Johnson,
because the resulting intestacy would be
favorable to her as a sole heir. She stresses that
Section 636 of the Code Of Civil Procedure
should not govern the will executed by her
father in the US, because the word “state” in
the body of the section is not capitalized (thus
not referring to a State in the US).
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.
Art 815: 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. (n)
HELD: This interpretation is erroneous
because the full phrase “another state or
country”, means that the section refers to
either a State in the US or another country. The
admission of the will to probate by the CFI of
Manila under Section 636 was therefore
correct. Although the CFI Of Manila most
likely erred in taking judicial notice of Illinois
law when it promulgated that the will was
executed in conformity with the laws of
Illinois, Ebba is now precluded to raise this
issue because the petition to annul the probate
did not allege the difference between
Philippine Law and Illinois law.
What is the proper law for wills written abroad by
Filipinos?
(There is no express provision that it is lex
nationalii)
Tolentino:
Art 815 follows
celebrationis.
general
rule
of
lex
loci
The Civil Code did not mean to invalidate the will
of a Filipino made in conformity w/ Phil law.
Aliens making wills outside the Philippines are,
under Art 816 & 817, permitted to follow:
o lex nationalii
o lex domicilii
o lex loci celebrationis
Extrinsic Validity of Joint Wills
Art 818. Two or more persons cannot make a will
jointly or in the same instrument, either for their
reciprocal benefit or for the benefit of a third
person.
Article 816. 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
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
Joint wills are prohibited on grounds of public
policy, because:
1)
o
a will is a purely personal & unilateral
act & this is defeated if 2 or more
persons make their will in the same
instrument
2)
the revocable character of a will is
defeated, because if one of testators
revoke the will, the other testators will
have no instrument left
3)
it exposes a testator to undue influence
& may even tempt one of testators to
kill the other
4)
when a will is made jointly or in same
instrument, the more aggressive spouse
is liable to dictate the terms of the will
for his/her own benefit
- where will is also reciprocal, either of
the spouses who may be wicked may
be tempted to kill the other.
Babcock Templeton vs. Rider Babcock
(1928)
FACTS: The will of Jennie Rider Babcock was
executed in California. Babcock Templeton,
being the mother of the three beneficiaries of
the will, stressed that the laws of California
should govern the probate since Jennie Rider
Babcock acquired domicile in California.
William Rider Babcock opposes this by
stressing that her sister never acquired
domicile in California as her latest domicile
was New York.
HELD: Her domicile was California, because
even though she later left California for New
York, she never intended to be a New York
domiciliary. The trial court was also correct in
admitting the will for probate under Section
636 of the Code Of Civil Procedure, because
the length of time of her residence in and
eventual death in the Philippines did not
result into a loss of her US citizenship. She
never intended to become a Philippine
domiciliary, thus making Section 618
inapplicable to the will she executed abroad.
Joint wills executed by Filipinos in a foreign
country allowing joint wills are expressly
invalidated by law.
Joint wills executed in the Philippines by aliens
(whose laws do not prohibit it): the law is silent
It is suggested that such will should not be
probated if it affects heirs in the Philippines (in
accordance with the expressed policy in Art 819).
B. Intrinsic Validity of Wills
- governed by lex nationalii
Art 16: Real property as well as personal
Extrinsic Validity of Holographic Wills
property is subject to the law of the country
where it is stipulated.
Art 810: a holographic will is one entirely written,
dated and signed by the hand of the testator
himself. It is not subject to any other form, need
not be witnessed and may be made in or out of
the Philippines.
However,
intestate
and
testamentary
successions, both with respect to the order of
succession and to the amount of successional
rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law
of the person whose succession is under
consideration, whatever may be the nature of the
property and regardless of the country wherein
said property may be found. (10a)
Art 816 & 817 are also applicable to holographic
wills
Merits:
o
o
o
o
simple
convenient
does not require notarization
guarantees absolute secrecy
o
o
peculiarly dangerous
an invitation to forgery
Demerits:
short statements can confuse
handwriting experts
Miciano vs. Brimo: Miciano, as the administrator
of the estate of Joseph Brimo, filed a petition for
the partition of the estate. Andre Brimo opposed
the partition because the will itself was not
executed in accordance with the laws of Turkey,
in violation of Article 10 of the Civil Code.
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
The Court decided that although Andre Brimo
opposed his brother’s intention to have Philippine
laws apply he was not deemed to have contested
the legacy, because the choice of law clause in
the will was contrary to law. Our laws apply the
lex nationalii of decedent to determine intrinsic
validity of a will and this law was purposefully
disregarded by decedent. The Court considered
this clause as not imposed and “shall I no
manner prejudice the heir even if the testator
should otherwise provide.
a system of legitimes as a matter of public
policy, such policy does not extend to the
successional rights of foreigners.
General Rule: the probate court can only rule on:
1) extrinsic validity
2) due execution
3) testamentary capacity
4) compliance with requisites/solemnities
prescribed by law
__________________
Criticisms on the Miciano vs. Brimo decision:
Considering the primacy of giving primacy to the
last will and testament of the decedent, the court
should have respected the wishes of the
decedent (i.e. the clause in the will should not
have been annulled) by applying a policycentered approach.
C.
Interpretation of Wills
Interpretation of wills is to be governed by lex
nationalii.
If terms are clear & unambiguous: lex intentionis
Using the most significant relationship approach,
Philippine law would govern because Joseph
Brimo is a Philippine resident, the properties are
in here, and he made the will here… the only
contact with Turkey is the fact of his nationality.
When there are ambiguous provisions: intention
of party may be inferred by referring to context
of the will & the testator’s acts.
Article 1371. In order to judge the intention of
the contracting parties, their contemporaneous
and subsequent acts shall be principally
considered. (1282)
Under the escape device of “disingenuous
characterization”, the same result could have
resulted without flouting testator’s will. The court
could have characterized the main issue as one
of property and not of succession, thus making
Philippine law the governing law as the lex rei
Article 1375. Words which may have different
significations shall be understood in that which is
most in keeping with the nature and object of the
contract. (1286)
sitae.
Presence of ambiguous provisions
Presumptions to help interpretation:
1) The interpretations of such should be
determined in accordance w/ laws & customs of
that state most probably in mind of testator
Cayetano vs. Leonidas
(1984)
FACTS: Upon the death of Adoracion Campos,
her father Hermogenes sought to be declared
as owner of the entire estate as the only
compulsory heir. On the other hand, Nenita
Paguia (one of Adoracion’s sisters) sought the
reprobate of the will executed by Adoracion in
the US. When the trial court allowed probate
of the will in the Philippines, Hermogenes
raised in issue that the allowance of the will to
probate divested him of his legitime, because
the will preterited him.
2) In case a will admits of different dispositions,
the interpretation by which the disposition is to
be operative shall be preferred
Article 788. If a testamentary disposition admits
of different interpretations, in case of doubt, that
interpretation by which the disposition is to be
operative shall be preferred. (n)
D. Revocation
HELD: Since the governing law with respect to
the amount of successional rights is the
national law of the decedent, the governing
law of Adoracion’s will is Pennsylvania law.
And since Pennsylvania law does not have a
system of legitimes, Hermogenes is therefore
not preterited. Although the Philippines adopt
Article 829. A revocation done outside the
Philippines, by a person who does not have his
domicile in this country, is valid when it is done
according to the law of the place where the will
was made, or according to the law of the place in
which the testator had his domicile at the time;
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COURSE OUTLINE IN CONFLICTS OF LAW
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and if the revocation takes place in this country,
when it is in accordance with the provisions of
this Code. (n)
Revocation:
1. lex loci celebrationis
2. lex domicilii
3. according to our
Code
E.
Probate: an adjudication that the last will and
testament of a person was executed with all the
formalities required by law
As part of procedural law, probate is governed by
the law of the forum.
Article 830. No will shall be revoked except in the
But the forum will still have to look at the foreign
law concerning compliance with extrinsic validity.
following cases:
1) By implication of law; or
2)
3)
Probate
By some will, codicil, or other writing
executed as provided in case of wills; or
Rule 76 Section 9 Grounds for disallowing will.:
The will shall be disallowed in any of the
following cases;
By burning, tearing, canceling, or
obliterating the will with the intention of
revoking it, by the testator himself, or
by some other person in his presence,
and by his express direction. If burned,
torn, cancelled, or obliterated by some
other person, without the express
direction of the testator, the will may
still be established, and the estate
distributed in accordance therewith, if
its contents, and due execution, and the
fact of its unauthorized destruction,
cancellation,
or
obliteration
are
established according to the Rules of
Court. (n)
(a) If not executed and attested as required by
law;
(b) If the testator was insane, or otherwise
mentally incapable to make a will, at the time of
its execution;
(c) If it was executed under duress, or the
influence of fear, or threats;
(d) If it was procured by undue and improper
pressure and influence, on the part of the
beneficiary, or of some other person for his
benefit;
Problem: Testator revokes his will in then
domicile State A and dies in his new domicile
State B. If his revocation under the laws of State
A is invalid under State B laws, what law will
apply?
(e) If the signature of the testator was procured
by fraud or trick, and he did not intend that the
instrument should be his will at the time of fixing
his signature thereto.
Common law practice: law of the domicile at the
time of death.
Rule 77
Section 1. Will proved outside Philippines may be
allowed here. Wills proved and allowed in a
foreign country, according to the laws of such
country, may be allowed, filed, and recorded by
the proper Court of First Instance in the
Philippines.
Philippine law: law of the place of revocation.
Notice that there is a difference in the applicable
law governing revocation of wills by a person
domiciled in the Philippines and a nondomiciliary:
 For domiciliary: the governing law is the
law of the place where the revocation
was made (lex actus)
 For non-domiciliary: the governing law
is the law where the will was executed
(lex loci celebrationis)
__________________
Testamentary
capacity is the capacity to
comprehend the nature of the transaction in
which the testator is engaged at the time, to
recollect the property to be disposed of and the
persons who would naturally be supposed to
have claims upon the testator, and to
comprehend the manner in which the instrument
will distribute his property among the objects of
his bounty. (Bugnao vs. Ubag, 014 SCRA 163)
Rule 77 Section 1 + testamentary capacity - will
made in a foreign country allowed here in the
Philippines !!! (see Article 816)
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
FACTS: Each of the Cunanan spouses (Jose
and Evelyn) executed a will in New York
containing similar provisions on the
presumption of survivorship. When the entire
family perished in a fire that gutted their home
in New York, Rafael as the named trustee in
the will of Jose filed separate proceedings in
New York for the probate of the wills of his
brother and sister-in-law. Later, Salud Perez
(mother of Evelyn) filed a petition for
reprobate in Bulacan. Rafael opposed by
arguing that Salud was not an heir as per New
York law which must be the law that should
govern the wills as they were executed in New
York. In deciding the matter, the necessary
evidence that should be submitted are:
A will allowed in a foreign country in accordance
with the law of that country may be allowed in
the Philippines… no need to prove testamentary
capacity and due execution (see Article 817).
Common Law conflicts rules…
1) If the will is valid under the laws of the
last domicile, the will is valid everywhere
with respect to movable property
2)
but the probate in the last domicile does
not affect real property, as these will be
governed by lex rei sitae
Suntay vs. Suntay
(1954)
FACTS: Natividad Billian sought to have the
will (executed in the Philippines) of his
husband Jose Suntay probated. The trial court
denied probate because during the course of
the proceedings, the will was lost. Later, her
son Silvino filed a petition for the probate of a
will allegedly executed by Suntay in China.
The trial court again denied probate, and was
correct in deciding that way, because there
was no proof that:
1. the municipal district court of Amoy,
China, is a probate court
2. there was a law of China on
procedure in the probate or allowance
of wills
3. the legal requirements for the
execution of a valid will in China in
1931 were satisfied
4. the order of the municipal district
court of Amoy purports to probate the
will
(1) the due execution of the will in
accordance with the foreign laws
(2) the testator has his domicile in the
foreign country and not in the
Philippines
(3) the will has been admitted to probate
in such country
(4) the fact that the foreign tribunal is a
probate court
(5) the laws of a foreign country on
procedure and allowance of wills.
Except for the first and last requirements, the
petitioner submitted all the needed evidence.
Salud failed to submit the 1st and 5th
requirement. While the probate of a will is a
special proceeding wherein courts should
relax the rules on evidence, the goal is to
receive the best evidence of which the matter
is susceptible before a purported will is
probated or denied probate. Not only that,
Salud also failed to notify the heirs of Jose of
the proceedings.
HELD: In the absence of proof that the
municipal district court of Amoy is a probate
court and on the Chinese law of procedure in
probate matters, it may be presumed that the
proceedings in the matter of probating or
allowing a will in the Chinese courts are the
same as those provided for in our laws on the
subject. Because of this, rules on notice must
be followed. Since Silvino did not cause the
notification of the other heirs, this petition
must fall.
HELD: The rule that the court having
jurisdiction over the reprobate of a will shall
"cause notice thereof to be given as in case of
an original will presented for allowance"
means that with regard to notices, the will
probated abroad should be treated as if it were
an "original will" or a will that is presented for
probate for the first time. Accordingly,
compliance with Sections 3 and 4 of Rule 76,
which require publication and notice by mail
or personally to the "known heirs, legatees,
and devisees of the testator resident in the
Philippines" and to the executor are required.
Vda. De Perez vs. Tolete
(1994)
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
F.
Administration of Estates
______________
Duties of the administrator:
1)
2)
G. Trusts
to manage and settle the debts of the
decedent (primary purpose)
Trust: a right of property, real or personal, held
by one party for the benefit of the other.
to distribute the residuum of the estate
to the heirs (secondary purpose)
The trust contains an express choice-of-law
provision.
When the will has been proved or allowed, it is
the duty of the probate court to issue letters
testamentary thereon to the person so named in
the will upon the latter’s application.
The courts usually apply that law in keeping with
the policy of carrying out the intent of the creator
of the trust.
When there is no will, the court may appoint an
administrator.
When the trust does not contain an express
choice-of-law provision, the Court will deem
controlling the law that will sustain the validity of
the trust.
Two kinds of administrators:
a)
domiciliary -power over assets located in
state
b)
ancillary- appointed by a foreign court
to look after the properties located in
such foreign state
Choices-of-law for testamentary trusts:
Tayag vs. Benguet Consolidated Inc.
(1968)
FACTS: BCI stocks owned by the decedent
Idonah Slade Perkins were in the possession of
the domiciliary administrator County Trust
Company Of New York. Later, the CFI Of
Manila named Renato Tayag as the ancillary
administrator. When Tayag obtained a court
order for the County Trust Company to
deposit the stocks to him, BCI appealed.
a)
rules governing the
extrinsic validity of wills
intrinsic
and
b)
lex rei sitae with respect to the property
XVI. Choice of Law in Torts and Crimes
Tort: derived from the French word torquere or
“to twist”. It is an act or omission producing an
injury to another without any previous existing
lawful relation of which the act or omission may
be said to be a natural outgrowth or incident.
A.
HELD: The appeal must fail. BCI is a
Philippine corporation owing full allegiance
and subject to the unrestricted jurisdiction of
local courts. Its shares of stock cannot
therefore be considered in any wise as immune
from lawful court orders. The situs of shares of
stock is the place of domicile of the
corporation. And since the power of the
ancillary administrator over shares located
here is beyond question, it follows that the
stocks should be in the possession of Tayag.
Policies behind Conflicts Tort Law
2 Important Policies underlying substantive tort
law:
1)
to deter socially undesirable or wrongful
conduct
2)
to rectify the consequences of the
tortuous act by distributing the losses
that result from accident and products
liability
In view of these, the policy behind tort law will
most likely be a strongly held policy of the state
and as result, that state will not easily displace its
own law with the law of another state.
Succession and administration of estates are
governed by different laws:
 succession – national law
 administration – situs of property
(territorial/JDal)
In determining the applicable law, consider the
policies of: a) upholding the justified expectation
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
of parties, and b) minimizing the adverse
consequences that might follow from subjecting a
party to the law of more than one state.
conduct happens in one state but the injuries are
sustained in another.
Common law concept of place of wrong: place
where the last event necessary to make an actor
liable for an alleged tort occurs. It adheres to the
vested rights theory, so that if harm does not
take place then the tort is not completed.
Negligence or omission is not in itself actionable
unless it results in injury to another.
Conflicts torts cases arise:
1)
when the tortious conduct and place of
resulting injury are different and one
state imposes higher standards than the
other state
2)
when there are different product liability
laws and varying judicial interpretations
of the extent of liability
Civil law concept of place of wrong: place where
the tortious conduct was committed. This is
premised on the principle that the legality or
illegality of a person’s act should be determined
by the law of the state where he is at the time he
does such act.
Policies:
1) deter undesirable or wrongful conduct
2) rectify consequences – by distributing
the losses
 similarity between family conflicts cases
and torts conflicts cases: strongly held
policies of the state
The traditional view (whether the situs of the tort
is the place of conduct or injury) is that an actor
liable by the lex loci delicti is liable everywhere.
Damages arising from torts committed in one
state are actionable in another state.
Alabama Railroad vs. Carrol: the negligent
infliction of an injury in one state creates a right
of action there, which may be enforced in any
other state or country the comity of which admits
of it.
3 concerns in torts:
1) achieving just and reasonable results
(consider the interest of both parties
2) societal interest
3) shielding defendant from unnecessary
surprise
Loucks vs. Standard Oil Co.
(1913)
FACTS: Loucks, a NY resident, was run down
and killed by Standard Oil employees in an
accident while engaged in its business. Under
Massachusetts law, the corporation is liable for
the death of a person where the death was
caused by the negligence of the corporation’s
employees while engaged in its business.
However, under NY law, the corporation is
liable for such death where the death occurred
in NY. The action to recover damages was
filed in NY.
Distinguish:
“upholding
the
legitimate
expectations of parties” vs. “shielding defendant
from unnecessary surprise” – the first is used in
contracts cases, the second is used in torts
cases.
Why is the “place of the tort (locus delicti)”
difficult to determine? Different concepts of locus
delicti:
1) civil law: place of tortious conduct
2) common law: place of injury/vested
rights theory
 to determine lex loci delicti: determine
whether you are dealing with a civil law
or common law country
________________
B.
HELD: Massachusetts law may be applied. A
tort committed in one state creates a right of
action that may be sued upon in another
unless public policy forbids. A foreign statute
is not law in the state, but it gives rise to an
obligation, which, if transitory, follows the
person and may be enforced wherever the
person may be found.
Lex loci delicti commissi
Lex loci delicti commissi: the law of the place
where the alleged tort was committed. It
determines the tort liability in matters affecting
conduct and safety.
C.
Difficulty has been encountered in determining
the locus delicti where the liability producing
69
Modern Theories on Foreign Tort
Liability
COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
1. The
Most
Relationship
The court should first determine whether there is
a true or false conflict.
Significant
False conflict: only one state has an interest in
This theory considers the state’s contacts with
the occurrence and the parties.
having its law applied, and failure to apply the
other state’s law would not impair the policy
reflected in that law.
Two-fold purpose:
1) identify the interested state
2) evaluate the relevance of these contacts
to the issue in question
Apparent conflict: more than one state has an
apparent interest in applying its law to the case.
Prof. Currie: if only one state has a real interest
in the case and the other state’s interest is
insubstantial then there is a false conflict.
However, if both states have a real interest in
applying their law then the apparent conflict
becomes a true conflict.
The significant-relationship approach does not
call for a mechanical counting of factual contacts
where strength is drawn in numbers; instead the
court localizes the state of the most significant
relation and assesses the event or transaction in
the light of the relevant policy considerations of
the interested states and these underlying
policies.
Problem with Interest Analysis approach: are the
policies of the law always discernible? Sometimes
we merely guess the policies of the state
(because unarticulated in the law).
________________
Saudi Arabian Airlines vs. CA
(1998)
FACTS: Morada was a flight stewardess of
Saudi Airlines. She was involved in an
attempted rape case, which led to her
conviction of violation of Islamic laws in
Saudi. The Prince of Makkah ruled that she
was wrongfully convicted. However, she was
terminated from her employment by Saudia.
3. Cavers’
Principle
Preference
of
This principle deals with rules that sanction some
kinds of conduct engaged in by a defendant in
one state and extends the benefit of this higher
standard of conduct and financial protection to
the plaintiff even if the state of injury does not
create analogous liabilities.
HELD: The RTC of Manila has JD to try the
case, applying the “state of most significant
relationship rule.” The following contacts
should be considered in using this rule: place
where the injury occurred, place where the
conduct
causing
injury
occurred,
domicile/residence/nationality/place
of
business of the corporation, and place where
the relationship between the parties is
centered.
Pangalangan: Since both states consider that a
tort has been committed, the law of the state
which places a higher standard of conduct should
apply. This is true even if this is the place of
tortious conduct and not the place of injury.
Schmidt vs. Driscoll Hotel
(1957)
FACTS: Schmidt sued Driscoll Hotel for
illegally selling liquor to Sorensen, who was
the driver of a vehicle which turned over in
Wisconsin. Schmidt was a passenger of that
vehicle and sustained injuries as a result of the
accident. The suit was filed in Minnesota,
where the illegal sale was conducted.
In CAB, the Philippines had the most
significant contacts. The overall injury
occurred in the Philippines, Morada is a
resident and a Filipina national, Saudia is a
foreign corporation engaged in business here,
and the relationship of the parties is centered
here.
2. Interest Analysis
HELD: Minnesota court has jurisdiction, even
if the injury which followed the illegal sale
occurred outside Minnesota. The Restatement
This approach considers the relevant concerns
the state may have in the case and its interest in
having its law applied on that issue.
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COURSE OUTLINE IN CONFLICTS OF LAW
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should not be applied where the plaintiff
would have no remedy against the offending
liquor dealer. Under the principles of equity
and justice, the Minnesota law granting him a
remedy should be applied, considering that all
the parties are residents of Minnesota, Driscoll
Hotel was licensed under Minnesota law, the
violation of Minnesota law occurred there, and
the wrongful conduct was completed by
Sorensen in Minnesota.
the foreign tort is not contrary to the
public policy of the forum
c)
the judicial machinery of the forum is
adequate to satisfy the claim
The defendant in a transnational tort is often
sued in a foreign court against his will; his
consent to be sued is not necessary for the
acquisition of jurisdiction by the court. Hence,
questions as to the legitimacy of the JD and
validity of the decision may arise.
Schmidt illustrates the imposition of liability
under a substantive rule of tort law that has a
strong underlying admonitory policy.
ii. Products liability of the
foreign manufacturer
American Contributions to Conflicts Tort Law
Conflicts torts cases arise due to significant
differences in the laws of states on the basis and
extent of liability for defectively manufactured
products.
The determination of whether the law where the
tort was committed or the law of the domicile of
the parties is the controlling law is considered
one of the major contributions of American
jurisprudence to international conflicts thought.
Asahi Metal Industry vs. Superior Court of
California
(1987)
FACTS: Asahi Metal manufactures tire valve
assemblies in Japan and exports them,
including to a Taiwanese company which, in
turn, incorporates them into finished tires sold
in the US. The driver of a motorcycle, who had
an accident resulting in injuries to him and
death to his passenger, sued the Taiwanese
company. The Taiwanese company filed a
cross-complaint against Asahi.
Law of the tort: deemed as the proper law in
questions involving regulation of conduct.
Law of the domicile of the parties: governs in
matters that relate to loss-distribution or financial
protection.
In modern approaches, there is a distinction
between true or false conflict.
True conflict: both states have an
interest in having their law applied
 “maybe true” conflict
 false conflict: no choice necessary – the
court should apply the law of the only
interested state
_______________

HELD: The California court has no JD over
Asahi
Metal.
The
constitutional
touchstone/test of due process is whether the
defendant
purposefully
established
“minimum contacts” in the forum state. And
“minimum contacts” must have a basis in
some act by which the defendant purposefully
avails itself of the privilege of conducting
activities within the forum state, thus invoking
the benefits and protections of its laws.
D. Foreign Tort Claims
Tortious liability is transitory – the liability
resulting from the tort is deemed personal to the
perpetrator of the wrong, which follows him
wherever he goes. Compensations may be
exacted from him in any proper tribunal; the
right to sue is not confined to the place where
the cause of action arises.
In the CAB, no purposeful availment of the
California market on the part of Asahi. It does
not do business in California; has no office,
agents, employees, or property in Cal.; does
not advertise or otherwise solicit business
there; and did not create, control, or employ
the distribution system that brought its valves
to California.
i. Conditions
for
the
enforcement of tort claims
a)
b)
the foreign tort is based on a civil action
and not on a crime
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COURSE OUTLINE IN CONFLICTS OF LAW
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imposed on them by their status as coequal
sovereigns in a federal system.
Societe Nationale Industrille Aerospatiale vs. Lee
Kui Jak: An Aerospatiale helicopter crashed in
Brunei, killing a passenger who was a Brunei
resident. The administrator of the estate brought
the action in Texas, where Aerospatiale does
business. Held: Brunei (where the deceased lived
and the helicopter crashed) was the natural
forum for the trial for an action for damages
against the manufacturer of the helicopter, and it
would be oppressive for the plaintiffs to continue
with the Texas proceedings as Aerospatiale
would not be able to pursue legal proceedings
against the Malaysian company which operates
and services the helicopter.
In CAB, there us a total absence of those
affiliating circumstances that are a necessary
predicate to any exercise of state-court JD (no
activity whatsoever on Oklahoma; no sales
closed nor services performed there; no
availment of the privileges and benefits of
Oklahoma law; no solicitation of business
there).
In Asahi, even if there were minimum contacts, it
failed the reasonableness test.
Bier vs. Mines de Potasse: A Dutch market
gardener filed an action for damages in a Dutch
court against a French mining company. The
Dutch court held that it had no JD, but the
French court held that the plaintiff could elect
where to sue (place of damage or place of
injurious conduct).
Criticism of Asahi: “additional acts” requirement
is a reinvention of the stream of commerce law.
The fear is that the court might go back to preInternational Shoe standards n JD (requirement
of actual presence).
Sovereignty as Basis of Jurisdiction
In Worldwide Volkswagen, the only requirements
for the exercise of JD were minimum contacts
and the reasonableness test; Asahi did not follow
this, and include an additional requirement
(purposeful availment).
________________
The sovereignty model has been accepted both
to:
a) justify any exercise of jurisdiction over a
defendant present within the territory,
however short (“tag jurisdiction”)
b)
deny enforcement of a foreign court
judgment over a defendant who was not
present within that court’s jurisdiction
iii. The Alien Tort Act
The Alien Tort Statute granted US district courts
original JD over any civil action by an alien for a
tort committed in violation of the law of nations
or a treaty of the US.
Worldwide Volkswagen Corp. vs. Woodson
(1980)
FACTS: The spouses Robinson purchased a car
from Seaway Volkswagen in New York. They
met an accident in Oklahoma and pinned the
blame on the defective design of the car. They
brought a suit against the retailer and
distributor in Oklahoma.
Hilao vs. Estate of Ferdinand Marcos
(1996)
FACTS: A class suit was brought against
Marcos by parties seeking damages for
human-rights abuses committed against them
or their decedents. The Hawaii district court
found for Hilao and ordered a verdict of
almost $2 billion in damages. The Estate in its
appeal, argues that the Alien Tort Claims Act
does not apply to conduct that occurs abroad,
and since the acts complained of all occurred
in the Phils., the court has no JD
HELD: Oklahoma court has no JD. A state
court may exercise personal JD over a
nonresident defendant only so long as there
exist “minimum contacts” between the
defendant and the forum state. The 2 functions
of the concept of minimum contacts is to
protect the defendant against the burdens of
litigating in a distant or inconvenient forum,
and to ensure that the states, through their
courts, do not reach out beyond the limits
HELD: The court has JD. In a prior appeal it
has been held that subject-matter JD was not
inappropriately exercised even though the
actions xxx occurred outside the US.
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
compliance with customary international law.
That is why in order for the Alien Tort Act to
apply, there is a need to establish that the
tortious conduct violated an internationally
protected human right.
Filartiga vs. Pena-Irala
(1980)
FACTS: Plaintiffs brought an action in the US
against Pena-Irala for wrongfully causing the
death of Dr. Filartiga’s son in Paraguay.
iv. Philippine Rule on Foreign
Torts
HELD: The US federal court has JD, on the
basis of the Alien Tort Statute. This action is
undeniably an action by an alien, for a tort
only, committed in violation of the law of
nations. A wrong is recognized as a violation
of the law of nations where the nations of the
world have demonstrated that the wrong is of
mutual, and not merely several, concern.
There is no specific statutory law governing the
enforcement of claims for damages arising form
foreign torts. But on the theory of vested rights
the victim of a foreign tort may decide to file the
case in the Philippines.
It has been suggested that the English Rule may
be followed, such that the tort committed abroad
is actionable in the country where it was
committed and also under Philippine law.
*The concept of accountability, if considered
the core of the Alien Torts Act (as espoused by
the US Justice Department in Trajano vs
Marcos), would be a significant setback to the
advancement of international law.
Two conditions for a case based on a foreign tort
to be filed in the Philippines (English Rule):
Guinto vs. Marcos
(1986)
FACTS: Guinto and Suarez filed an action for
damages against Marcos in California under
the Alien Tort Claims Act. According to
Guinto, Marcos’ act of seizing their film “100
Days in September” violated their freedom of
speech.
1)
the wrong must be of such a character
that it would have been actionable if
committed in the Philippines
2)
the act must not have been justifiable
by the law of the place where it was
done
Time, Inc. vs. Reyes
(1971)
FACTS: Villegas and Enrile filed a complaint
for damages against Time, Inc. upon an
alleged libel arising from a publication of Time
Magazine. Plaintiffs filed their action in CFI
Rizal. But according to the applicable law, they
may file the action only in the place of first
publication or in the City of Manila (since they
are public officers).
HELD: Test to determine when a violation of
the law of nations has occurred – there has
been a violation by one or more individuals of
those standards, rules or customs a) affecting
the relationship between states or between an
individual and a foreign state, and b) used by
those states for their common good and/or
dealings inter se. A violation of the First
Amendment right of free speech does not rise
to the level of such universally recognized
rights as to constitute a violation of the law of
nations.
HELD: The case should be dismissed for
improper venue. The only alternative allowed
to the public official is to prosecute in the place
where the offending article was printed and
first published; but in the CAB the alternative
was not open to plaintiffs since the offending
publication was not printed in the Philippines.
The Alien Tort Statute justifies exercise of court
JD over completely foreign tort cases because of
the universal evil exemplified by human rights
violations. This is so even though there are no
significant contacts between the courts and the
parties and events nor substantial state interest
in the case other than a general desire for
In Time, Inc., if the court had not characterized
the issue as jurisdictional, and decided the case
from a conflicts tort perspective, it could have
taken cognizance of the case following the most
significant relations approach because of the
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
significant links between the forum and the
parties.
since it determines the specific law by which the
criminal is to be penalized, and designates the
state that has the JD to punish him.
In ordinary foreign tort, the court acquiring JD
must be either the place of tortious conduct or
place of injury. In Alien tort Statute, US courts
may acquire JD even if it is neither the place of
tortious conduct nor place of injury.
3 Exceptions to the Territorial rule:
1)
“law of nations” (Filartiga): “mutual” concern –
nations consider the act to be detrimental to all
nations; it is a violation of a law of all countries.
1)
the
violation
affects
relationship
between states, or an individual and a
foreign state
2) used by the states for their common
good and/or dealings inter se
_______________
Crime
Transitory in character;
hence
liability
is
deemed personal to
the
tortfeasor
and
make him amenable to
suit in whatever JD he
is found
Local in character; the
perpetrator
of
the
wrong can be sued
only in the state
wherein he commits
the crime
An
injury
to
an
individual who may be
situated in any place
An injury to the state
where it is committed
Liability is attached to
the
perpetrator
to
indemnify the victim
for
injuries
he
sustained
Promulgated to punish
and
reform
the
perpetrators and deter
them and others from
violating the law
F.
HELD: Wylie and Williams are not immune
from the suit. They are sought to be held
answerable for personal torts in which the US
is not involved; if found liable, they alone
must satisfy the judgment. The Bases Treaty
provision on immunity could not possibly
apply in this case, as it is presumed that the
laws of the US do not allow the commission of
crimes in the name of official duty. The general
rule is that public officials can be held
personally accountable for acts claimed to
have been performed in connection with
official duties where they have acted ultra vires
or where there is showing of bad faith.
Distinguishing between Torts and
Crimes
Tort
state officials, diplomatic representatives
and officials of recognized international
organizations (based on doctrine of
state immunity)
Wylie vs. Rarang
(1992)
FACTS: Wylie and Williams are officers of the
US Navy stationed in the Subic Naval base,
and are in charge of the publication “Plan of
the Day.” Rarang filed an action for damages
against them for libelous statements published
in the POD.
Guinto: violation of law of nations test—
E.
First Exception: crimes committed by
This immunity for sovereign acts is impliedly
waived when the foreign state and its officials
perform private, commercial or proprietary acts.
In Rarang, although the publication was part of
the duty of Wylie and Williams, the goal of the
publication of the complaint would have been
achieved without identifying Rarang by name.
Lex loci delicti
Under the territorial principle, crimes committed
within the Philippines by all persons, whether
Filipino citizens or aliens, are prosecuted and
penalized under Philippine law. As a rule, criminal
laws of a state are effective only upon persons
who actually commit the crime within the state’s
territory.
Liang (Huefeng) vs. People
(2000)
FACTS: Liang, a Chinese working at the ADB,
was charged by a fellow worker with grave
oral defamation. The lower court dismissed
the complaint on the ground that Liang is
covered by the immunity provision under the
The lex loci delicti or the law of the place where
the crime was committed is the controlling law
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Agreement between ADB and the Phil.
Government.
US vs. Look Chaw
(1910)
FACTS: Two sacks of opium were found to be
in the control of Look Chaw aboard the Erroll,
an English steamship. A complaint for
possession and sale of opium was filed against
him.
HELD: Liang is not immune from suit. The
immunity under the Agreement is not
absolute, and it only extends to acts done in
official capacity. Slandering a person could not
possibly be covered by the immunity
agreement because our laws do not allow the
commission of a crime, such as defamation, in
the name of official duty.
2)
HELD: Philippine courts have jurisdiction.
Although the mere possession of an article of
prohibited use in the Philippines, aboard a
foreign vessel in transit, in any local port, does
not as a general rule constitute a crime triable
by the courts of the Islands, such vessel being
considered as an extension of its own
nationality, the same rule does not apply when
the article, the use of which is prohibited in the
Islands, is landed from the vessel upon
Philippine soil.
Second Exception: crimes committed on
board a foreign vessel even if it is within
the territorial waters of the coastal state
In the Philippines, our courts will not acquire JD
over offenders nor can Phil. laws apply as long as
the effect of such crime does not disturb our
peace and order.
3)
Third Exception: crimes which, although
committed by Philippine nationals
abroad, are punishable under Philippine
law (ex. Art. 2 RPC)
US vs. Fowler
FACTS: Fowler et al were accused of theft on
board the US vessel Lawton while it was
traveling on the high seas.
HELD: Philippine courts have no jurisdiction
over Fowler. Act 400 granting JD to RP courts
for crimes and offenses committed on the high
seas, apply to ship or water craft registered or
licensed in the Philippines only. In the CAB,
the Lawton was not registered in the
Philippines; it was a US vessel.
Fowler
Cheng
Look
Chaw
US
English
English
High seas
Within RP
territorial
waters
Within RP
territorial
waters
CRIME
theft
Smoking
opium
Possession
and selling
of opium
RESULT
No JD
Acquired
JD
Acquired
JD
FLAG
LOCATION
People vs. Wong Cheng
(1922)
FACTS: Wong was charged for having illegally
smoked opium on board an English vessel
Changsa while anchored in Manila Bay.
HELD: Under the English rule which is
applicable here (it is the prevailing theory in
the US), to smoke opium within our territorial
limits, even though aboard a foreign merchant
ship, is certainly a breach of the public order
here established. It causes such drug to
produce its pernicious effects within our
territory. It seriously contravenes the purpose
that our Legislature had in mind in enacting
the repressive statute, and is therefore triable
in our courts.
In RP, we follow the French Rule.
XVII. Choice of Law Affecting Corporations
and Other Juridical Entities
A.
Corporations
A corporation is an artificial being created by
operation of law, having the right of succession
and the powers, attributes and properties
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
expressly authorized by law or incident to its
existence.
not exercise power in Alabama thereby
making the contracts void.
Foreign corporation – formed under the laws of a
state other than the Phils; such laws allowing
Filipino citizens and corporations to do business
there. It shall have a right to do business here
only after obtaining a license and a certificate of
authority from the appropriate government
agency.
HELD: Bank can exercise its powers in
Alabama and the contracts are therefore valid.
It is well-settled that by the law of the comity
of nations, a corp. created by 1 sovereignty is
permitted to make contracts in another and
sue in its courts and that the same law of
comity prevails in several States of US
including Alabama. Alabama courts have held
that a foreign corp may sue in its courts based
on the comity of nations.
1. Personal
Law
Corporation
of
a
The personal law of the corporation is the law of
the state where it is incorporated. If the law
creating it does not authorize it to enter into
certain contracts, such contracts which can be
made in other states shall be void despite the
express permission given by the other state.
Four Basic (Important) Theories from the case:
ME Gray vs. Insular Lumber Co.
(1939)
FACTS: Gray, a stockholder of Insular
(incorporated in NY) filed an action in CFI to
compel Insular to allow him to examine its
books. Sec. 77 of NY Stock Corp Law only
gives the right to stockholders owning 3% of
the capital stock of the company. Gray does
not own the required shares.
HELD: Gray is not entitled to the right to
examine the books of Insular. Gray is bound
by the NY law which only gives him the right
to receive from the treasurer of the corporation
a statement of affairs covering a particular
account of all its assets and liabilities. Neither
can his rights be granted under common law
absent a showing that:
a. he seeks information for an honest
purpose or to protect his interest as
stockholder
b. he exercises right in good faith and for a
specific and honest purpose not merely to
satisfy curiosity or for speculative or
vexatious purposes.
1)
a corporation, being a creature of law,
has no legal status beyond the bounds
of the sovereignty within which it was
created
2)
a corporation cannot exercise powers
not granted by its corporate charter or
by the laws of the state of incorporation
3)
no state is under any obligation to
adhere to the doctrine of comity (every
state has the power to refuse
recognition)
4)
a state is not obliged to grant to a
foreign corporation the privileges and
immunities common to its citizens
The power of a foreign corporation depends upon
the laws of the state recognizing it. It may
impose conditions or limitations subject to a few
exceptions as decided by US courts, to wit:
a)
commerce clause – prohibits a state
from
imposing
conditions
on
corporations engaged in interstate
commercial activities and provides the
basis of federal power to regulate
interstate commerce.
b)
Since it is considered a “person”, once
allowed to enter a state and acquire
property, it cannot be discriminated
against by domestic corps
c)
Unconstitutional conditions – forbids a
state from requiring the foreign
corporation to give up its constitutional
rights either as a prerequisite to
allowing it to do business or to avoid
being removed from that state
Anglo American Theory on Corporations
Bank of Augusta vs. Earle
(1839)
FACTS: Bank of A (incorporated in Georgia),
thru M’Gran bought bills from Earle in
Alabama. Bills were unpaid so Bank sued
Earle. TC ruled that the Georgian Bank could
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COURSE OUTLINE IN CONFLICTS OF LAW
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A foreign corporation, although a person, is not a
citizen entitled to the privileges given by the
state to its individual citizens.
Investments on the other hand is owned by 2
Venezuelan corps. Even assuming that the
stocks of the 2 Venezuelan corps are owned by
US citizens, to hold that the set-up in CAB falls
within the Parity Amendment is to unduly
stretch and strain the language and intent of
the law. There would be practical impossibility
to determine at any given time the citizenship
of the controlling stock.
If according to the personal laws of the
corporation, stockholders are given certain rights,
such rights cannot be diminished nor added upon
by the law of the place where the corporation
does business. This is because such rights are
already fixed by the corporation.
________________
b.
During wars, courts may pierce the corporate
identity and look into the nationality of
stockholders to determine the citizenship of the
corp.
2. Exceptions to the Rule of
Incorporation Test
a. Constitutional and Statutory
Restrictions
Filipinas Compania de Seguros vs. Christern,
Huenfeld, Co., Inc.
(1951)
FACTS: Christern (German Co.) filed a claim
against Filipinas (US Co.) for recovery on fire
insurance policies issued by the latter. F
refused to pay claiming that the policies
ceased to be in effect on the date the US
declared was against Germany. Dir. Of Bureau
of Financing directed F to pay C.
A state may, by legislation, exclude a foreign
corp altogether, subject to the constitutional
limitations, or prescribe any conditions it may see
fit as a prerequisite to the corporation’s right to
do business within its territory.
1987 Phil Constitution:
a.
b.
c.
Control Test During the
War
regulates exploration, development and
utilization of natural resources such that
only 60% Filipino-owned corps may be
allowed to engage in these activities
the nation’s marine wealth and the
exclusive economic zone is reserved
exclusively to Filipinos
Congress is empowered to reserve
certain areas of investments to 60 %
Filipino owned corps or provide for a
higher percentage (e.g. mass media –
100%)
HELD: The policy ceased to be valid and
binding because of the fact that majority of the
stockholders of C are Germans and it became
an enemy corporation when war was declared.
Under Phil Insurance Code, anyone except a
public enemy may be insured. C is a public
enemy at the time the insurable risk occurred.
But C is entitled to a return of the premiums
paid.
Pedro Palting vs. San Jose Petroleum
(1966)
FACTS: Palting opposes the tie-up between
San Jose Petroleum (a Panamanian corp.) and
San Jose Oil (domestic corp.) as being violative
of the Constitution and the Petroleum Act. SJP
claimed that it is entitled to the Parity
Amendment which grants to US citizens the
right to use & exploit natural resources in the
Phils because its stockholders are US citizens.
Filipinas Compania case was decided that way
because of the government interest involved.
_______________
Daimler Co. Continental Tire and Rubber Co.:
HELD: An English corporation with an English
secretary but whose shares of stock are
controlled by German nationals was considered
an enemy corporation and prohibited from
trading in England. It ruled that the company
itself was incapable of loyalty or enmity. These
qualities are attributable only to human beings.
The company therefore had the predominant
character of its shareholders being Germans.
HELD: SJP is not covered by the Parity
Agreement. It is not owned or controlled
directly by US citizens. It is owned by another
Panamanian corp., Oil Investments. Oil
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3.
Requirements for License: Secs. 125-128, Corpo
Code)
a. sworn application
b. copy of articles of incorporation
c. designation of an agent
d. sworn certification of an official of the
incorporating state that a similar right is
given to Filipinos in that state and that the
foreign corp. is in good standing
e. statement under oath by the official of the
corp. attesting that the corp is solvent and in
sound financial condition
Domicile or Residence of
Foreign Corporations
Art. 51, CC
When the law creating or recognizing them, or
any other provision, does not fix the domicile of
juridical persons, it is understood to be
a. the place where legal representation is
established
b. where they exercise their principal functions
A foreign corp. granted license to do business
here acquires a domicile in the Phils.
Foreign Corporations doing Business are Bound
by Philippine Law
State Investment House vs. Citibank
Art. 129, Corp Code
(1991)
All foreign corporations lawfully doing business in
the Philippines shall be bound by all laws, rules
and
regulations
applicable
to
domestic
corporations.
FACTS: CMI obtained loans from Citibank.
CMI defaulted. Citibank filed petition for
involuntary insolvency against CMI with CFI,
Rizal. State Investment, a creditor of CMI,
opposed claiming that Citibank had no
jurisdiction because the banks are not resident
creditors of CMI.
Exceptions:
1. laws on creation, formation, organization or
dissolution of corporations
2. laws which fix the relations, liabilities,
responsibilities or duties of stockholders,
members or officers of the corp to each
other
HELD: The Phil branches of the bank are
residents of the Phils being resident foreign
corporations as defined in the Tax Code and
other Banking Laws. What effectively makes a
foreign corp a resident corp in the Phils is its
actually being in the Phils and licitly doing
business here (locality of existence) The grant
of license merely gives legitimacy to its doing
business here but it does not make the corp a
resident. Also, the failure of the bank to aver
categorically that they are residents are not
fatal to the cause of action where it alleged that
it is a foreign bank licensed to do business
here.
Rule 14, Sec. 14 ROC
Service upon foreign corporations doing business
in the Phils. may be made on the:
1.
2.
3.
resident agent
in the absence thereof, to the government
official designated by law or any of its
officers or agents within the Phils
on any officer or agent of the corp in the
Phils
*a fourth method is established by case law:
service thru diplomatic channels
4. Jurisdiction Over Foreign
Corporations
5. Right
of
Foreign
Corporation to bring Suit
The dictum that a corporation has force only in
the incorporating state and no existence outside
that state has been abandoned. The prevailing
rule is, with the consent of a state, a foreign
corp. shall be recognized and will be allowed to
transact business in any state, which gives its
consent.
Acquisition of a license by a foreign corporation is
an essential prerequisite for filing of suit before
our courts.
Art.
133, Corp Code states that these
corporations may be sued or proceeded against
before Phil courts or administrative tribunals on
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COURSE OUTLINE IN CONFLICTS OF LAW
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any valid cause of action recognized under Phil
law.
Eastboard Navigation vs. Ysmael & Co.
(1957)
FACTS: Eastboard was able to secure a
favorable decision from NY arbiters against
J.Y. & Co. It brought an action for enforcement
of a money claim against JY & Co. in the Phils.
JY opposed alleging that E had no capacity to
sue.
Home Insurance Co. vs. Eastern Shipping
Lines
(1983)
FACTS: Home Insurance was subrogated to the
rights of shippers against eastern Shipping for
damages on cargo. Eastern refused to pay. HI
filed action to recover sum of money. TC
dismissed because HI failed to prove capacity
to sue.
HELD: E has capacity to sue. The license is not
necessary because it is not engaged in business
in the Phils. The 2 isolated transactions do not
constitute engaging in business within the
purview of the Corpo Law.
HELD: HI has capacity to sue because at the
time the complaints were filed, it already had a
license to conduct insurance business in the
Phils. Insurance contracts are not null and void
for lack of license at the time it was entered
into. The Corp. Code is silent on the status of
the said contracts. Also, the object of the law in
requiring registration is to subject the foreign
corp. to the JD of our courts.
b.
Action
to
Protect
Trademark, Trade Name,
Goodwill, Patent or for
Unfair Competition
Even without a license, a foreign corporation may
file complaint for unfair competition since it is a
suit enjoining the unfair trader from pursuing the
unlawful competition & for the aggrieved party to
recover damages. This is based on equity
considerations.
Atlantic Mutual Insurance vs. Cebu
Stevedoring
(1966)
FACTS: Cebu Stevedoring carried copra for
Procter & Gamble. Copra were insured with
AMI. Bec. of damages, AMI sued Cebu
Stevedoring. CS filed a MTD bec. AMI had no
capacity to sue. TC ruled that it must allege
that it has a license to be able to sue.
Converse Rubber vs. Jacinto Rubber:
FACTS: Converse owns the trademark of
“Converse Chuck Taylor All Star”. Jacinto
manufactures shoes of identical appearance.
Hence, this suit.
HELD: Such allegation is unnecessary.
However, AMI’s mere allegation that it is a
foreign corp is not sufficient. It must state
WON it is doing business in the Phils bec
different rules attach to the same. If it is
engaged in business, it must be licensed to be
able to sue. If not so engaged, the license is not
required and it may sue esp. if it is a
single/isolated transaction.
HELD: Sec 69 of the Corp Law does not
disqualify Converse from filing the suit
although it is unlicensed to do business and is
not doing business in the Phils. This is in
compliance with the Convention of Paris for
the Protection of Industrial Property from
which the Phils adheres to and which US is a
signatory.
6. Exceptions
to
Requirement
Leviton Industries vs. Salvador
(1982)
FACTS: Leviton Manufacturing (US) sued
Leviton
Industries
(Phil)
for
unfair
competition bec. the latter uses the trademark
Leviton. Defendant filed MTD for failure to
allege capacity to sue.
a.
License
Isolated Transactions
This has been defined as one which is occasional,
incidental and casual, not of a character to
indicate a purpose to engage in business. It does
not constitute “doing business” under the law.
HELD: Plaintiff failed to allege capacity to sue.
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COURSE OUTLINE IN CONFLICTS OF LAW
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1.
a.
b.
2.
All that Leviton Manufacturing alleged is
that it is a foreign corporation. It should
have, in addition, alleged the ff pursuant
to Sec. 21-a:
it registered its trademark with the Phil.
Patent Office or that it is an assignee of the
trademark, and
that the country of which it is a citizen or
domiciliary grants to Filipino corps the
same reciprocal treatment, either in a
treaty, convention or law.
It also violates Sec. 4, Rule 8 of the Rules of
Court, which states that:
Facts showing the capacity of a party to
sue or be sued or the authority of a party
to sue or be sued in a representative
capacity or the legal existence of an
organized association of persons that is
made a party, must be averred.
c.
resident
for
contracts
entered
and
consummated outside the Phils.
Reasons for rule: if not adopted,
a. it will hamper the growth of business
between Filipinos and foreigners
b. it will be used as protection by
unscrupulous
Filipinos
who
have
businesses abroad
d.
Petition Filed is Merely a
Corollary Defense in a Suit
against it
Time Inc. vs. Reyes
HELD: The court allowed a foreign corp is not
maintaining a suit in our courts but is merely
defending itself when it files a complaint for
the sole purpose of preventing the lower court
from exercising jurisdiction over the case. As
such, it is not required to allege its capacity to
sue.
Agreements
Fully
Transacted Outside the
Philippines
Phil. Columbia Enterprises vs. Lantin
(1971)
FACTS: Katoh & Co. filed a complaint against
Phil Columbian. Phil Columbian challenged its
capacity to sue. TC deferred the determination
of this issue until trial on the merits. PC
opposed claiming that if it files a counterclaim,
it will be waiving its right to assail the capacity
to sue of Katoh.
A foreign corporation is allowed to maintain an
action on a transaction wholly celebrated and
consummated abroad so as not to impair the
policy of stabilizing commercial transactions.
Universal Shipping Lines vs IAC
HELD: The private respondent may sue in the
Phils upon the marine insurance policies to
cover international-bound cargoes shipped by
the carrier. It is not the lack of the license but
doing business without such license which
bars a foreign corporation from access to our
courts.
HELD: A counterclaim is a complaint against
the plaintiff. It would not be the foreign corp
who will be maintaining a suit. Therefore, Sec.
69 of the Corp Law will not apply.
7.
Hang Lung Bank vs. Saulog
(1991)
FACTS: Hang Lung Bank, not doing business
in the Phils, entered into continuing guarantee
agreements with Cordova Chin San in
HongKong for the debts of Wolder
Enterprises. Wolder defaulted so Hang Lung
sued Wolder and Chin San. No payment was
made so it sued Chin San in RTC, Makati for
enforcement of its money claim. Chin San
moved to dismiss for incapacity to sue.
Definition and Scope of
Transacting Business
A foreign corporation may do business, state
consent being presumed, except:
1. where it is prohibited by express statutory
authority or constitutional enactment
2. where it is seeking to perform acts which are
contrary to public policy
3. where it is seeking to exercise extraordinary
and special franchises
4. where it is seeking to perform acts which are
not authorized by the law of the state of its
incorporation
HELD: A foreign bank not doing business in
the Phils, such as Hang Lung, may sue a
“Doing Business” (Foreign Investments Act)
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-
soliciting orders,
service contracts,
opening offices whether called “liaison”
offices,
appointing representatives if the latter stays
for at least 180 days,
participating in the management, supervision
or control of any domestic business
and any other act that imply a continuity of
commercial dealings
and contemplate in the performance of acts
or works
the progressive prosecution of commercial
gain or of the purpose/object of the business
organization
contract for failure to develop the software
program contracted. WL filed MTD on the
basis of lack of jurisdiction over its person bec.
the service was invalid it being a foreign corp
not engaged in business in the Phils.
HELD: WL is “doing business” in the Phils. It
has installed 26 products in the Phils and has
registered its tradename with PPO. It allowed
E to use such trademark and to advertise the
same.
Thus, it cannot be said that the case involved
an isolated or single transaction. The
transaction is not merely incidental or casual
but is of such nature as to indicate a purpose
to do other business in the State.
What is not doing business:
1.
2.
3.
4.
mere investment as a shareholder
exercising of rights as investor
having a nominee director or officer to
represent interests
appointing a representative or distributor in
the Phils which transacts business in its own
name and for its own accounts
CIR vs. JAL
(1991)
FACTS: JAL was assessed deficiency income
tax by CIR for the sales of its ticketing agent
(PAL) in the Phils. JAL opposed and claimed
that as a non-resident foreign corp. it can only
be taxed on income from Phil sources.
Doing business serves as the basis for jurisdiction
over corps on the theory that they are present in
the state or have consented to suit by making
that state a major place of business.
HELD: JAL is a resident foreign corporation
under the Tax Code. For a foreign corporation
to be regarded as doing business, there must
be a continuity of conduct and intention to
establish
a continuous
business
(i.e.
appointment of a local agent) and not a
temporary one. JAL constituted PAL as a local
agent to sell tickets which is the lifeblood of
airline tickets, the generation of sales being its
paramount objective.
Avon Insurance vs. CA
(1997)
HELD: A reinsurance company is not doing
business in a certain state merely because the
property or lives which are insured by the
original insurer company are located in that
state since the reinsurance contract is usually a
separate and distinct arrangement from the
original contract of insurance, whose
contracted risk is insured in the reinsurance
agreement.
Merrill Lynch Futures vs CA
(1992)
FACTS: Lara spouses entered into a Futures
Customer Agreement with Merrill Lynch
Futures Inc. They become indebted to it after a
loss in the business. Laras refused to pay and
claimed that the transactions were void
because MLFI had no license to operate as a
commodity or financial futures broker.
The term “doing business in the Phils” implies
a continuity of commercial dealings and
arrangements and contemplates, to that extent,
the performance of acts or works or the
exercise of functions normally incident to and
in the progressive prosecution of the purpose
and object of its organization.
HELD: MLFI had the capacity to sue and Laras
are estopped from denying the same after
having done business with it over many years.
The purpose of applying the doctrine of
estoppel is to prevent persons from taking
undue advantage of a corp’s non-compliance
Wang Laboratories vs. Mendoza
(1987)
FACTS: Wang Lab (US corp) sells its products
in the Phils thru its exclusive distributor,
Exxbite. ACCRS sued WL for breach of
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with the statutes where such person received
benefits under their contract.
But the transnational corporations are established
under and governed by each host country’s
national laws.
Granger vs. Microwave Systems
(1990)
FACTS: Granger (US) sued MSI (Phil) for
recovery of a sum of money. MSI did not pay
and claimed that G had no capacity to sue bec.
it was unlicensed.
However, all locally incorporated branches are
joined together by the common control and
management of higher officials in the home
state.
As to liability, the single unit comprising the
cluster is held liable according to the laws of the
host country but the transnational corporation, in
its entirety, is not answerable to any legal order.
HELD: G had no capacity to sue because of its
being an unlicensed foreign corp doing
business in the Phils. Neither does it fall under
the established exceptions. Granger had the
burden of showing that the finding fell under
an exception. The purpose of requiring license
is to enable Phil courts to exercise jurisdiction
over them. If the foreign corp operates here
without submitting to our laws by securing a
license, they may not be allowed to invoke our
laws for their protection.
B.
Derivative Jurisdiction over Foreign Corporations
(parent-subsidiary)
2 Important Issues
1. whether ownership by the parent over the
subsidiary’s stock is enough to give
jurisdiction over the subsidiary
2. whether the activities of the subsidiary in a
state will give that state jurisdiction over he
parent corporation
Restatement 2nd:
Jurisdiction over the parent will exist if the parent
controls and dominates the subsidiary. In
determining whether the separate corporate
existence of the subsidiary has been adequately
preserved, the courts will consider whether the
subsidiary has its own records, assets,
advertising, employees, payroll and accounting
and whether its directors and headquarters are
different form those of the parent.
Special Corporations
1. Religious Societies and the
Corporation Sole
A religious society, if controlled by aliens, is not
permitted to acquire lands.
A corporation sole is an incorporated office
composed of only one person as in the cases of
the chief archbishop, bishop, priest, minister or
an elder of a religious sect which may form a
corporation sole for the purpose of managing its
affairs, property and temporalities.
In the converse situation, jurisdiction over the
parent may give jurisdiction over the subsidiary if
the separate corporate existence of each has not
been adequately maintained or if the parent has
acted within the state as the subsidiary’s agent.
Roman Catholic Administrator vs. LRC
HELD: The 60% Filipino capital requirement to
own lands was not intended to apply to
corporations sole because it is composed of
one person usually a head or bishop of a
diocese but he is only the administrator and
not the owner of the temporalities. Such are
administered for and in behalf of the faithful
who are Filipino citizens.
C.
Partnerships
Partnership is formed by 2 or more persons who
bind themselves to contribute money, property or
industry to a common fund with the intention of
dividing the profits among themselves.
Phil internal law provides that if the domicile of
the partnership is not identified by the law
creating it, it is deemed domiciled in the place
where it has its legal representation or where it
exercises its principal functions.
2. Transnational Corporations
Transnational corporations are clusters of several
corporations, each with a separate entity,
existing and spread out in several countries, but
controlled by the headquarters in a developed
state where it was originally organized.
What matters are governed by the personal law
of the partnership?
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1.
2.
3.
4.
5.
nature, attributes and capacity to contract of
the partnership
whether or not a partnership has been
constituted (esp. the conditions and
formalities required)
determination of WON it requires a separate
juridical personality (Common law does not
consider a partnership a legal person but
civil law endows partnerships with a
separate legal personality)
grounds for dissolution and termination of
partnerships
liability of partners esp. if limited partnership
is allowed
Rules on recognition & enforcement are
analogous but there are differences in conceptual
& procedural aspects.
ENFORCEMENT: This happens when a successful
plaintiff fails to enforce judgment in the forum
court so he seeks to carry out the execution of
the judgment in another state.
This requires the filing of an action and a new
judgment before the properties of the defendant
can be attached.
RECOGNITION: This may arise when a successful
defendant wins and asserts that decision to
preclude the plaintiff from filing a suit on the
same claim in another forum. It is basically a
passive act because it does not require the filing
of an action in another forum. EX. Decree of
divorce.
What are governed or subject to the law of the
place of business?
1.
2.
3.
4.
entitlements and limitations, in general
creation of establishments in the state
mercantile operations
jurisdiction of nations


1)
B.
1) Comity
Domestic Corp.:
a) Can sue
b) Can be sued
According to Cheshire, the theory on comity
mean that in order to maintain reciprocal
treatment from the courts of other countries, we
are compelled to take foreign judgments as they
stand & to give them Full faith & Credit.
Foreign Corps.
Doing Business
a. With license – can sue and be
sued
b. Without license – cannot sue,
can be sued
Comity calls for reciprocity between the
concerned jurisdictions. Thus, forum A will
withhold recognition & enforcement of prior
judgment if it comes from Forum B, w/c does not
give same concession to forum A judgment.
2)
Not
Doing
Business
(isolated
transaction) – can sue and be sued
________________
2) “Obligation of foreign judgments”
This doctrine of obligation is derived from the
rigid & unyielding vested rights theory.
Judgment of a foreign court of competent
jurisdiction is considered as imposing a duty or
obligation on the losing litigant.
i.e.:
Forum 1- adjudicates debt owing to
plaintiff
Forum 2- treats F1 judgment as
evidence of debt w/c may be enforced in F2 by
an action of debt
PART FIVE: FOREIGN JUDGMENTS
XVIII: Recognition and Enforcement of
Foreign Judgments
A.
Distinction between
and Enforcement
Bases
of
Recognition
and
Enforcement of Foreign Judgments
Recognition
‘Foreign judgments’- all decisions rendered
outside the forum and encompasses judgments,
decrees & orders of courts of foreign countries as
well as of sister states in a federal system of
gov’t.
Goddard vs. Godard
(1870)
FACTS: Godard (French) obtained a favorable
ruling by a French court arising on a charter
party obligation against Gray (English). The
Conceptual & Procedural Differences between
Recognition & Enforcement:
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COURSE OUTLINE IN CONFLICTS OF LAW
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French court interpreted the clause “penalty
for non-performance of this agreement,
estimated amount of freight” as a clause that
sets the limits to liability to one voyage
between the parties to the charter party
contrary to the English interpretation. When
this French judgment was sought to be
enforced in England, Gray interposed in
defense that the erroneous French judgement
is a bar to the action for enforcement in
England.
of successful plaintiff or defendant that he will no
longer be harassed into protecting his interests.
HELD: it is not a bar. In England, foreign
judgement are enforced based on the principle
that where a court of competent jurisdiction
has adjudicated a sum of money to be due
from one person to another, a legal obligation
arises to pay the sum, on which an action of
debt to enforce the judgement may be
maintained and not merely out of politeness
and courtesy to other tribunals of other
countries. Anything that negates the existence
of a legal obligation or excuses the defendant
from performance is a good defense to the
action (ex. Evidence that court exceeded its
jurisdiction or the judgement was obtained
thru fraud)
It considers the plaintiff’s cause of action as
merged in the judgment. Thus, he may not
relitigate that exact same claim.
Rule 39 Sec 40:
A foreign
country,
judgment
the thing
judgment of a tribunal of a foreign
having jurisdiction to pronounce
renders it conclusive upon the title to
while a judgment against a person is
presumptive evidence of a right as between the
parties & their successors in interest
2.
3.
Merger
Bar
This is where a successful defendant interposes
the judgment in his favor to avert a second
action by plaintiff on the same claim. By direct
estoppel, the relitigation of all matters decided
are precluded
addition, DOCTRINE OF COLLATERAL
ESTOPPEL renders conclusive all “essential issues
In
of fact actually litigated in the suit decided on by
the foreign court”.
Distinction between Res Judicata & Collateral
Estoppel
C. Policies Underlying Recognition and
Enforcement
RES JUDICATA- seeks to end litigation by
disallowing suit on the same claim
1. Res judicata
COLLATERAL
ESTOPPELconcerned
with
preclusion by barring relitigation of an issue
already litigated on in a prior proceeding
Many courts recognize & enforce foreign
judgments on ground of res judicata, under
which principle:
a. those who contested an issue shall
be bound by the result &
b. matters once tried & decided w/
finality in one jurisdiction shall be
considered as settled b/w the
parties
D.
Requisites
Enforcement
1)
The foreign judgment was rendered by
a judicial or a quasi-judicial tribunal
which had jurisdiction over the parties &
the case in the proper judicial
proceeding.
2)
The judgment must be valid under the
laws of the court that rendered it
3)
The judgment must be final & executory
to constitute res judicata in another
action
4)
The state where the foreign judgment
was obtained allows recognition or
enforcement of Philippine judgment
Thus, parties are prevented from litigating issues
already determined by a local judgment.
In
Anglo-American
jurisprudence,
foreign
judgments are not open to reexamination on
merits when placed in issue before local courts
subject to a few exceptions.
The principle seeks to accomplish the policy of
giving finality to litigation. Public policy dictates
diminishing the judicial energy invested in
deciding suits, encouraging confidence in court
decrees and securing the legitimate expectations
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
5)
The judgment must be for a fixed sum
of money
6)
The foreign judgment must not be
contrary to the public policy or the good
morals of the country where it is to be
enforced
7)
The judgment must not have been
obtained by fraud, collusion, mistake of
fact or mistake
Japanese procedural law to base its claim since
in matters of procedure, lex fori applies. Also,
Sec. 14 of ROC applies, it allows service to be
made to:
a. resident agent designated (if
it has one, the designation is
exclusive)
b. if none, on the government
official designated by law (
Insurance Commissioner –
foreign
insurance
co.;
Superintendent of Banks –
foreign banking corps. & SEC
– other foreign corps licensed
to do business in Phils) The
government official shall
transmit the summons by
mail to the principal office.
c. any of its officers/agents
within the Phils.
1. The foreign judgment was rendered by a
judicial or a quasi-judicial tribunal having
jurisdiction over the parties & the case in the
proper case
A court validly asserts jurisdiction over actions in
personam based on consent of parties or relation
of the parties or events to the forum, thus
satisfying minimum standards of fair play &
substantial justice.
Sharp did not designate an agent so service on
govt official or any of its officers in Japan is
allowed. The Court finds that the service made
by Tokyo court sufficient to fall under service
to the proper govt official.
In in rem proceeding, jurisdiction is based on the
power of the state over the property found within
the territory
(Tokyo DC- SC Japan – Ministry of Foreign
Affairs of Japan – Japanese Embassy – DFA,
Phils – RTC – sheriff delivered summons to
principal office)
Northwest Orient Airlines vs. CA and C.F.
Sharp
(1995)
FACTS: Under contract of agency, NOA
authorized Sharp to sell airline tickets. Sharp
failed to remit the proceeds of the ticket sales
to NOA. The court in Tokyo failed to serve the
writ of summons against the Sharp branches in
Tokyo. NOA had these writs served in the
Manila main office of Sharp. Despite the
notice, Sharp did not appear at the hearing.
NOA obtained a judgment in its favor. NOA
sought enforce the judgment in the
Philippines. Sharp opposed claiming that the
service of process was void so the Tokyo Court
did not acquire jurisdiction over it.
Boudard vs. Tait
(1939)
FACTS: Boudard’s husband, employee of Tait,
was killed by co-employees. Boudard obtained
a favorable judgment against Tait who was
declared to be in default in CFI of Hanoi. She
filed action for execution of Hanoi judgment in
CFI Manila. Court dismissed for lack of
jurisdiction of Hanoi court over Tait who was
not a resident of French Indo-China.
HELD: Service of summons by Tokyo court
was valid. A foreign judgment is presumed to
be valid and binding in the country where it
comes, until the contrary is shown. The
regularity of the proceedings and the giving of
due notice is also presumed. The party
attacking has the burden of overcoming this
presumption. In CAB, SHARP alleged that the
extraterritorial service of summons is void.
However, Sharp failed to prove the applicable
HELD: Hanoi court has no jurisdiction over
Tait. Jurisdiction in personam, over nonresidents, in money suits, must be based upon
personal service within the state that renders
the judgment. At the time of the complaint,
Tait was not in Hanoi nor were his agents or
representatives. Also, the French law on
service of summons was not applied. Instead
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
of serving a copy to the Atty Gen of the
Republic who shall visae the original, the
summons were served in Manila to J.M.
Shotwell, a representative of Churchill & Tait
Inc, which is an entity entirely different from
Tait.
Borthwick vs. Castro
(1987)
FACTS: Borthwick (US) owned real properties
in Hawaii. He issued promissory notes to
Scallon but failed to pay the same. Scallon
sued him in Hawaii. B was issued summons
while in California which process was valid
under Hawaiian law. For failure to enforce the
judgement, S filed action in Phils. B’s defense
is that the Hawaii court has no jurisdiction
over the cause of action and over his person.
Ramirez vs. Gmur
(1918)
FACTS: The will of Bischoff contained a
statement to the effect that he had no living
forced heirs. Leona Castro, Bischoff’s
recognized natural daughter, had 2 sets of
children from 2 marriages, who claim to be
heirs of Bischoff.
 first married to Von Kaufmann and had 3
children but Von Kaufmann obtained
divorce on France
 Castro was remarried to Dr. Mory and
they had 2 children
HELD: Foreign judgements are presumptive
evidence of the rights between parties and
rejection may be justified, among others, by
want of jurisdiction of the issuing authority,
among others. But in CAB, such rejection was
not justified. What Borthwick seeks in this
appeal is a 3rd chance to contest the jurisdiction
of the foreign court. In order to do that, he
must show that the declaration of default was
incorrect. But Borthwick did not do this.
Borthwick was given an opportunity to file his
answer in the Hawaii court, he was also given
a chance in the CFI, Makati, but he failed to do
the same.
HELD: as to the Mory children – NO, the
second marriage is void. The right to inherit
pertains only to legitimate, legitimated and
acknowledged natural children. The French
decree of divorce is not valid in the
Philippines. French court had no jurisdiction
to entertain actions for dissolution of
marriages of performed in the Phils over
persons domiciled here. The RULE is that
when a court, where neither of the spouses are
domiciled, and to which one or both, may
resort merely to obtain decree of divorce,
issues such decree, the divorce is not entitled
to recognition elsewhere.
2. The judgment must be valid under the laws of
the court that rendered it
In Pemberto vs. Hughes although there was
error in procedure, since the Florida court was
competent & no substantial injustice was
committed, the English court did not consider the
error as to significantly alter an otherwise valid
decree.
As long as the foreign court acquired jurisdiction,
its decisions will not be disturbed whether it was
reached through an adversary proceeding or by
default.
3. The judgment must be final & executory to
constitute res judicata in another action
If judgment is interlocutory or provisional in
character w/c ‘contemplates that a fuller
investigation leading to final decision may later
be held, it creates no obligation on the forum
court to recognize it.
Somportex vs. Philadelphia Chewing Gum Corp..
Court rejected Philadelphia’s contention that a
default judgment by the English courts should
not be extended hospitality by American courts.
“In the absence of fraud or collusion, a default
judgment is as conclusive as adjudication
between the parties as when rendered after
answer & complete contest in open court.
Nouvion vs. Freeman
(1889)
FACTS: Nouvion filed an action for
administration of the estate of Henderson. In
order to show that he was Henderson’s
creditor, Nouvion alleged that he obtained a
The polestar is whether a reasonable method for
notification is employed & reasonable opportunity
to be heard is given to the person concerned.”
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
foreign judgment establishing Henderson’s
indebtedness to him.
4. The state where the foreign judgment was
obtained allows recognition or enforcement of
Philippine judgment
HELD: The Spanish judgment cannot be
sustained because it was not yet final and
conclusive. Where a court of competent
jurisdiction has adjudicated a certain sum as
due from one to another, a legal obligation
arises, on which an action of debt to enforce
judgment may be maintained. But to come
within the terms of law properly laid down,
judgment must result from an adjudication of
a court of competent jurisdiction, such
judgement being final and conclusive. It is not
sufficient that the judgement puts an end to
and finally settles controversy. It must e
shown that in the court by which it was
pronounced it conclusively and finally settles
forever the existence of debt of which it is
sought to be made conclusive.
In Hilton vs. Guyot, a French judgment was not
recognized by a US court because it found out
that French laws allowed review of American
judgments on the merits. This ruling is widely
criticized because:
 Instead of being a mutual exchange of
privileges, comity was used as a means of
retaliation.
 The court in Hilton discriminated against the
litigants on account of the policies of their
governments which they were in no position
to shape and alter.
 It can be argued that the task of formulating
policies through reciprocity is a power
misplaced in the judiciary and should be
appropriately wielded by the other branches
of government.
Trautman and Von Mehren point out the
difficulties with the reciprocity requirement.
a. its normal tendency is to lower
rather than raise the standards
of practice
b. the private litigants burdened
may not be closely attached to
the legal order sought to be
changed
c. the
administration
of
reciprocity clauses can be
complicated esp. where case
law systems are affected since
finding the exact foreign law
that grants reciprocity is still
nebulous. It is unclear whether
reciprocity is proved by general
recognition of such or requires
a specific recognition for a case
identical or analogous to the
one before the court.
Querubin vs. Querubin
(1950)
FACTS: Following their divorce because of
Margaret’s infidelity, rendered in New
Mexico, their daughter Querubina was kept in
a neutral home. Silvestre then obtained an
interlocutory decree granting him custody.
Margaret had the decree modified since the
she was remarried and had a stable home for
Querubina. When Silvestre fled to the
Philippines with Querubina, Margaret filed for
habeas corpus. She asserts that the
interlocutory order should be complied with
pursuant to Article 48 Rule 39.
HELD: Her contention is erroneous. A foreign
interlocutory order in favor of Margaret did
not establish a vested right with respect to
rightful custody over Queribina. The decree is
not yet final but subject to change with the
circumstances. Generally, divorce decree
awarding custody of child to one spouse is
respected by other states but such decree has
no effect in another state as to facts and
conditions occurring subsequently to date of
decree. Court of another state may award
custody otherwise upon proof of subsequent
matters justifying such decree to the child’s
interest.
Cowans, et al. vs. Teconderoga Pulp and
Paper Co.
(1927)
FACTS: Cowans obtained a Quebec judgment
in their favor for a sum of money. TPP asserts
in defense that this judgment is not conclusive
upon, but merely a prima facie evidence before
the US courts, pursuant to Quebec law. TPP
alleges that since Quebec law does not
reciprocate as to judgements of NY courts, NY
should also not recognize the Quebec
judgment as adjudications of the issues.
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
a.
in case of a judgment upon a
specific thing, the
judgment is
conclusive upon the title to the thing
b.
in case of judgment upon a
person, the judgment is a presumptive
evidence of a right as between the
parties and their successors in interest
by a subsequent title; but the judgment
may be repelled by evidence of want of
jurisdiction, want of notice to the party,
collusion, fraud, or clear mistake of law
or fact.
HELD: This claim of TPP pursuant to the
Hilton vs. Guyot doctrine should not be
followed. Persuasiveness of a foreign
judgment is not dependent upon comity nor
reciprocity. Even without these principles, a
judgment has its own strength. Following the
Hilton vs. Guyot ruling would deprive a party
of the private rights he has acquired by reason
of a foreign judgement because the country in
whose courts the judgement was rendered has
a different rule of evidence than what the
recognizing court has and does not give the
same effect as the latter gives to a foreign
judgment.
This rule does not refer to intrinsic fraud which
goes to the merits of the case. To impeach a
foreign judgment, fraud must be “extrinsic,
collateral act which vitiates the most solemn
proceedings of the courts of justice” such as
collusion by the parties, suppression of an
important document or the presentation in
evidence of a forged will or falsified affidavit.
Extrinsic fraud signifies that a party is deprived of
his day in court.
5. The judgment must be for a fixed sum of
money
Unless
the
foreign
judgment
specifies
performance or delivery, there is nothing for the
forum court to enforce. In Sadler vs. Roberis, the
English court held that until taxation, the plaintiff
could not enforce his claim because the Jamaican
court decided that from the sum due him should
first be subtracted the costs incurred by the
defendant which was to be taxed. Hence, the
amount decreed was not fixed.
Philippine Aluminum vs. FASGI
(1950)
FACTS: FASGI (US) entered into a
distributorship agreement with PAWI (Phil).
PAWI shipped defective goods to FASGI.
FASGI sued PAWI for breach of contract in US
court. They entered into a settlement but
PAWI still failed to pay. US court issued a
certificate of final judgment upon application
by FASGI of entry of judgment. FASGI was
not able to satisfy the claim in US so it filed a
complaint for enforcement in RTC. RTC
dismissed but CA reversed.
6. The foreign judgment must not be contrary to
the public policy or the good morals of the
country where it is to be enforced
Querubin vs. Querubin
(1950)
HELD: It goes against the law, public policy,
and good customs that a mother who violated
her marital vows should have custody
(referring to the fact that Margaret was having
an illicit affair with another man).
HELD: California court judgment may be
enforced. A judgment for a sum of money
ordered in a foreign court is presumptive
evidence of a right between the parties and
their successors-in-interest, but when suit for
enforcement is filed in Phil court, the
judgment may be repelled by evidence of want
of jurisdiction, want of notice, fraud, collusion
or a clear mistake of law or fact.
In CAB, PAWI failed to prove that there was
collusion between its counsel, Mr. Ready, and
FASGI in entering into the settlement and in
agreeing to an entry of judgment against
PAWI. PAWI should have raised the issue
before the forum court in line with the
principle of comity of nations that a court
should refrain from assuming the power to
pass upon the correctness of the application of
7. The judgment must not have been obtained by
fraud, collusion, mistake of fact or mistake of law
Whether or not there is fraud is decided by the
court where enforcement of judgment is sought
on the basis of its own internal law. A problem
may arise when the internal law is not in
agreement with the notions of equity of the
foreign state.
Rule 39, Sec. 50
Effect of Foreign Judgment. The effect of a
judgment of a court of a foreign country, having
jurisdiction to pronounce the judgment is as
follows:
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By: Atty. Enrique V. dela Cruz, Jr.
laws and evaluation of facts of judgments
issued by foreign courts.
2)
3)
Puyat vs. Zabarte
(2001)
FACTS: Z filed an action to enforce money
judgment rendered by the Superior Court of
California against P. RTC by summary
judgment ordered Puyat to pay Z pursuant to
Judgment of Stipulation for Entry of Judgment
contained in the Compromise Agreement
between them in the Calif. court. CA held that
P is estopped from assailing the judgment that
had become final.
4)
5)
6)
HELD: The summary judgment is allowed.
Since the present action lodged in the RTC was
for the enforcement of a foreign judgment,
there was no need to ascertain the rights and
obligations of the parties based on foreign
laws or contracts; the parties needed only to
perform their
obligations
under
the
Compromise Agreement they had entered
into. None of the reasons for invoking forum
non conveniens barred the RTC from exercising
its jurisdiction (forum shopping, overcrowded
dockets, harassment of defendants, etc.) In
CAB, there was no more need for material
witnesses, no forum shopping or harassment
of Puyat, no inadequacy in the local machinery
to enforce the foreign judgment and no
question raised as to the application of any
foreign law.
the proceedings in sufficient time to
enable him to defend
The judgment was obtained by fraud
The cause of action or claim for relief on
which
judgment is based is
repugnant to public policy of the state.
The foreign judgment conflicts with
another final & conclusive judgment.
The proceeding in the foreign country
was contrary to an agreement between
the parties under which the dispute in
question settled otherwise than the
proceeding in that court
In the case of jurisdiction based only on
personal service, the foreign court was a
seriously inconvenient forum for the trial
of the action
Grounds 1-3 under letter b are mandatory & the
last 3 are discretionary.
The ground on non-recognition for lack of
jurisdiction in personam is most debatable. Most
courts consider jurisdiction of foreign court as
appropriate when there are significant contacts
between forum states & individuals.
The service of summons as the traditional basis
for exercise of jurisdiction has been eroded.
The ground that “foreign court was seriously
inconvenient” employs doctrine of forum non
conveniens to restrain use of “presence” as
cornerstone of jurisdiction.
Art 23 Hague Convention on Jurisdiction,
Applicable Law, Recognition, Enforcement &
Cooperation in re of Parental Responsibility &
Measures for Protection of Children:
E. Grounds for Non-Recognition
Considering the best interests of child,
recognition of measures directed for protection of
the child or his property may be refused if such
were taken without giving the child opportunity
to be heard or if contrary to public policy.
Uniform Money-Judgment Recognition Act of the
US, Section 4:
(a) A foreign judgment is not conclusive if1. The judgment was rendered under a
system which does not provide impartial
tribunals or procedures compatible with the
requirements of due process of law
2. The foreign court did not have personal
jurisdiction over the defendant
3. The foreign court did not have jurisdiction
over the subject matter
Violation of ordre public & nonobservance of due
process are included as grounds for nonrecognition in many Hague Conventions.
F.
Modern
Developments
in
Enforcement of Foreign Judgment
The Hague Conference on Private IL
Convention on Recognition & Enforcement of
Foreign Judgments in Civil & Commercial Matters
1.
(b) A foreign judgment need not be
recognized if1) The defendant in the proceedings in
foreign court did not receive notice of
established conditions & requisites for contracting
states to recognize & enforce each other’s
judgment.
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Procedure in Philippines
(Compared to simple procedure of exequaure,
Philippine mode is protracted & expensive).
Contributions:
a) provisions on applicability of Convention
irrespective of nationality
b) non-refusal for sole reason that court of
state of origin has applied a law other
than that which would have been
applicable according to the rules of
Private IL of the state addressed
c) it addresses the question of whether a
default
judgment
is
subject
to
enforcement
d) establishes recognition & enforcement
procedures
Our laws require that a petition should be filed in
proper court attaching authenticated copy of
foreign judgment to be enforced.
Philippine consul must certify that it had been
rendered by a court of competent jurisdiction.
The petition must comply w/ all the requisites of
an enforceable judgment.
Requirement to file an action anew
The seventh session looked into possibility of a
general convention on recognition & enforcement
of judgments whose chief benefit will be the
relatively uniform procedure among contracting
states.
Attempt to reconcile the principle of territorial
jurisdiction of courts w/c demands that the
enforcement of a judgment outside the territory
of rendering court must be placed upon some
other basis than the authority of the rendering
court w/c ceased at its jurisdictional limits- & the
principle of res judicata.
2. The EEC Convention of 1968
Six countries comprising the European Economic
Community are signatories to Convention on
Jurisdiction of Courts & Enforcement of
Decisions…
Ingenohl vs. Olsen and Co.
FACTS: Ingenohl obtained a HK judgment
declaring it to be the owner of the trademark
against Olsen. Ingenohl then recovered the
sums awarded by the HK judgment in an
action for collection in Manila. Olsen appealed.
The appeal was granted because the trial court
erred in not taking into account the fact that
Olsen had bought the Ingenohl trademark in a
sale of the same conducted by the Alien
Property Custodian. Hence this petition by
Ingenohl.
The Convention extends to Common Market area
the reach of jurisdictionally improper for a now
available against non-residents under procedural
systems of 4 member states.
3. The Uniform Money-Judgments Recognition
Act
This seeks to inspire more confidence in stability
of American law & bring together into one statute
all common law rules of recognition from
jurisprudence.
The Philippines has adopted the common law
practice of not instantaneously executing foreign
judgment.
HELD: There is no error on the part of the HK
court. In authoritatively passing upon the
issue of not giving effect to the sale by the
Alien Property Custodian, it cannot be said
that the HK tribunal committed a wrong
decision. The judgment is unquestionably
valid and is binding between the parties.
When the judge who is the final exponent of
that law, authoritatively declares that the
assignment by the Custodian of the assets of
the Manila firm cannot and will not be allowed
to affect the rights of the party concerned in
Hong Kong, the court ruled that it is not
possible for a foreign court to pronounce his
decision wrong.
MODES OF ENFORCEMENT
Procedure in other civil law countries
A. First Mode: Need for New Judicial Action
B.
What does the act cover?
It is applicable to any foreign country judgment
that is final & conclusive & enforceable when
rendered even though an appeal is pending or it
is subject to appeal.
G. Procedure for Enforcement
Second Mode: Exequatur - -Summary
proceeding also known as ‘exequatur’ procedure.
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COURSE OUTLINE IN CONFLICTS OF LAW
By: Atty. Enrique V. dela Cruz, Jr.
Authenticated copy of foreign judgment need
only be accompanied by a certification from Clerk
of Court. Once validated the foreign judgment
has same effect as local judgment. Example:
French formule executoire, used in France, Italy,
Austria
C. Third Mode: Judgment Registration
It may or may not involve judicial supervision.
Authenticated copy of foreign judgment filed w/
registrar’s office w/ other proofs required by
domestic laws & foreign judgment is converted
into a local one that is immediately executory.
It is used in Australia, England.
Distinctions between a foreign country & a sisterstate judgment in United States
These differences are premised on possible
absence of principles underlying res judicata
practices within foreign country.
Von Mehren & Trautman: There are significant
differences between the 2 to justify refusal of a
foreign country judgment even though it could be
recognized if rendered by a sister state:
1) US Constitution clause of full faith and
credit. This substitutes a federal policy
in place of individual state policies, thus
demanding that sister-state judgments
be given more than minimal preclusive
effects.
2) Judgments of sister-state may be
brought to US Supreme Court for review
3) Judgments rendered by sister states are
based on legal procedures & standards
similar to those whose recognition is
sought.
On the other hand, a foreign country judgment
may have been decided under rules that
disregard private rights & duties or fundamental
policies that the recognizing court deem
important.
In practice, courts are inclined to give recognition
because of
1) overriding public interest
2) dictates of public policy that there be an end
to litigation.
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