CIVIL LAW REVIEWER TABLE of CONTENTS

426

PRIV

ATE

INTERN

ATIO

NAL

LAW

PRIVATE INTERNATIONAL LAWTable of Contents

Chapter I. Introduction.................................427

Chapter II. Jurisdiction ................................429I. Bases of Exercise of Judicial Jurisdiction

429II. Exercise of Jurisdiction .....................429III. Ways of Dealing with Jurisdiction in aConflicts Problem.......................................430

Chapter III. Choice of Law ...........................431I. Approaches to Choice of Law ...........431

Chapter IV. Characterization.......................433I. Types of Characterization .................433II. Depecage..........................................433

Chapter V. Renvoi ........................................434I. Definition ...........................................434II. Ways of Dealing with Renvoi ............434

Chapter VI. Notice and Proof of Foreign Law.......................................................................435

I. Proof of Foreign Law.........................435II. Exceptions to the Application of ForeignLaw 435

Chapter VII. Nationality................................436I. Determination of Nationality ..............436II. Procedure for Naturalization .............436III. Loss of Philippine Citizenship ...........437IV. Problems in Applying the NationalityPrinciple .....................................................438

Chapter VIII. Domicile ..................................439I. Domicile ............................................439II. Comparative Merits and Demerits ofDomicile and Nationality ............................440

Chapter IX. Principles on Personal Statusand Capacity.................................................441

I. Definition ...........................................441II. Beginning and End of Personality.....441III. Absence ............................................441IV. Name.................................................442V. Age of Majority ..................................442VI. Capacity ............................................442

Chapter X. Family Relations........................443I. Marriage ............................................443II. Divorce and Separation.....................445III. Annulment and Declaration of Nullity445IV. Parental Relations.............................446V. Adoption ............................................446

Chapter XI. Property ....................................447I. Controlling Law—Lex Situs/Lex ReiSitae447II. Exceptions to Lex Situs.....................447III. Situs of Certain Properties ................447

Chapter XII. Contracts .................................449I. Extrinsic Validity of Contracts ...........449II. Extrinsic Validity of Contracts ...........449III. Capacity to Enter Into Contracts.......449IV. Choice of Law Issues in ConflictsContracts Cases ........................................449V. Limitation Choice of Law...................450VI. Applicable Law in the Absence ofEffective Choice.........................................450

Chapter XIII. Succession .............................451I. Extrinsic Validity (Arts. 17, 815-817, CC)

451II. Intrinsic Validity .................................451III. Interpretation of Wills ........................451IV. Revocation ........................................451V. Probate..............................................451VI. Administration of Estates ..................452VII. Trusts............................................452

Chapter XIV. Torts and Crimes...................453I. Torts ..................................................453II. Crimes...............................................454

Chapter XV. Torts and Crimes....................455I. Personal Law of Corporations ..........455II. Domicile/Residence of Corporations 455III. Jurisdiction Over Foreign Corporations

455IV. Right of Foreign Corporations to BringSuit 456

Chapter XVI. Foreign Judgments ...............457I. Recognition v. Enforcement..............457II. Bases of Recognition and Enforcement

457III. Policy of Preclusion UnderlyingRecognition and Enforcement ...................457IV. Requisites for Recognition orEnforcement ..............................................457V. Procedures for Enforcement .............457VI. Effect of Foreign Judgment in thePhilippines .................................................458

CIVIL LAW REVIEWER Chapter I. INTRODUCTION

427

PRIV

ATE

INTERN

ATIO

NAL

LAW

Chapter I. Introduction

PRIVATE INTERNATIONAL LAW:

It is a branch or part of Philippine Law which

regulates the application of foreign law

within Philippine jurisdiction in the resolution

of cases involving foreign elements.

It is that part of municipal law which governs

cases involving a foreign element.

more commonly known in other jurisdictions

as conflict of laws

General Nature of Private International Law

It is a method or technique. It is not a

system of substantive rules. It has no

material content in terms of rights and

duties, and hence it does not provide

immediate solution to the issue at hand. It

only points out the legal system which rules

are to be applied to a particular dispute.

It is a modus vivendi among the private law

systems of the world by which they may

apply one another’s laws.

The principles of conflict of laws

incorporated in municipal laws of many

states are based on comity of nations.

COMITY: is neither a matter of absolute

obligation nor of mere courtesy and good

will, it 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 (Hilton v. Guyot,

1895)

FOREIGN ELEMENT may refer to parties,

property, events, or transactions.

PRIVATE INTERNATIONAL LAW vs.PUBLICINTERNATIONAL LAW

Basis PRIL PILParties

Individuals orcorporations

Primarily statesand internationalorganizations

Exception:Human rightscases

Transactions state-to-state orgovernment-to-governmentmatters

privatetransactionsbetweenindividuals

PRIV

ATE

INTERN

ATIO

NAL

LAW

PRIVATE INTERNATIONAL LAW TEAM

Lyvette San DiegoLead Writer

Viktor FontanillaWriter

CIVIL LAW

Kristine BongcaronPatricia TobiasSubject Editors

ACADEMICS COMMITTEE

Kristine BongcaronMichelle Dy

Patrich LeccioEditors-in-Chief

PRINTING & DISTRIBUTION

Kae Guerrero

DESIGN & LAYOUT

Pat HernandezViktor FontanillaRusell Aragones

Romualdo Menzon Jr.Rania Joya

LECTURES COMMITTEE

Michelle AriasCamille MarananAngela Sandalo

Heads

Katz ManzanoSam Nuñez

Arianne Cerezo

Mary Rose BeleyKrizel MalabananMarcrese Banaag

Volunteers

MOCK BAR COMMITTEE

Lilibeth Perez

BAR CANDIDATES WELFARE

Dahlia Salamat

LOGISTICS

Charisse Mendoza

SECRETARIAT COMMITTEE

Jill HernandezHead

Loraine MendozaMary Mendoza

Faye CelsoJoie Bajo

Members

CIVIL LAW REVIEWER Chapter I. INTRODUCTION

428

PRIV

ATE

INTERN

ATIO

NAL

LAW

Sources Custom Treaty general

principles oflawrecognized bycivilizednations

judicialdecisions

teachings ofthe mosthighlyqualifiedpublicists

Nationalconflict rule

Internationalconflict rules

Remedies

resort to forumcourt oradministrativetribunals (asprovided bymunicipal lawsof the state)

diplomaticprotest

negotiation,conciliation,arbitration

adjudicationbeforeinternationaltribunal

use of force war

PRIL v. Municipal law: presence of foreign

element

SOURCES1. Codes and statutes2. Treaties and international conventions3. Treatises, commentaries, and studies of

learned societies4. Judicial decisions

Examples of Conflict of Law Rules in thePhilippines1. Art. 15 CC: Lex Patriae2. Art. 1251 (par. 3) CC: Lex Domicili3. Art. 16 CC: Lex Situs/ Lex Rei Sitae4. Art. 17 (par. 1) CC: Lex Loci Contractus5. Art. 71 CC: Lex Loci Celebrationis6. Art. 26 (par. 1) FC: Lex Loci Celebrationis7. Art. 1306 CC: Lex Loci Intentionis

General Process in the Resolution of ConflictProblem1. Jurisdiction

Where can or should litigation beinitiated?

2. Characterization of Cause of Action Which legal category does the case fall

into?3. Choice of law Which law will the court apply?

4. Recognition and enforcement ofjudgments Where can the resulting judgment be

enforced?

CIVIL LAW REVIEWER Chapter II. JURISDICTION

429

PRIV

ATE

INTERN

ATIO

NAL

LAW

Chapter II. Jurisdiction

I. BASES OF JURISDICTIONII. EXERCISE OF JURISDICTIONIII. WAYS OF DEALING WITH JURISDICTION IN

A CONFLICTS PROBLEM

JURISDICTION1. Judicial jurisdiction - the power or

authority of a court to try a case, renderjudgment and execute it in accordancewith law.

2. Legislative jurisdiction- the ability ofthe state to promulgate laws andenforce them on all persons andproperty within its territory.

I. Bases of Exercise of JudicialJurisdiction

A. Jurisdiction over the PERSON

Acquisition—1. Over plaintiff: filing of suit2. Over defendant:

a. entry of appearance, orb. service of legal process/summons

In rem proceeding: service of summons bypublication Asiavest Limited v. CA, 1998: Jurisdiction

over the person of the defendant is not aprerequisite to confer jurisdiction on thecourt provided that the court acquiresjurisdiction over the res. Nonethelesssummons must be served upon thedefendant not for the purpose of vesting thecourt with jurisdiction but merely forsatisfying the due process requirement.

In personam proceeding:1. General Rule: Personal service of

summons or substituted service,PROVIDED, the defendant is within theterritorial jurisdiction of the court

2. Exception: In Gemperle v. Schenkerwherein a non-resident was served withsummons through his wife, who was aresident of the Philippines and who was hisrepresentative and attorney-in-fact in a priorcivil case filed by him; moreover, the secondcase was a mere offshoot of the first case.

B. Jurisdiction over the PROPERTY1. Acquisition

a. seizure of property under a legalprocess

b. institution of legal proceedings whereinthe court’s power over the property isrecognized and made effective

2. Basis of jurisdiction: the presence of theproperty within the territorial jurisdiction ofthe forum

C. Jurisdiction over the SUBJECT MATTER

Acquisition—1. competence of the court to hear, try and

decide the case is conferred by law2. necessary that said power be properly

invoked by the filing of petition3. cannot be conferred by mere consent of

parties

II. Exercise of Jurisdiction

TRADITIONAL BASIS:1. State’s PHYSICAL POWER over persons

and property within its territory2. This explains the distinctions made between

actions in personam1

and actions in rem orquasi in rem

2, dating back to the case of

Pennoyer v. Neff (1878).

In the US: The conceptual basis for the exerciseof jurisdiction has shifted from territorial power toconsiderations of MINIMUM CONTACTS andFUNDAMENTAL FAIRNESS.1. International Shoe Co. v. Washington

(1945): Due process only requires that thedefendant who is not present within theterritory of the forum have minimum contactswith it such that the maintenance of the suitdoes not offend traditional notions of fairplay and substantial justice.

2. Mullane v. Central Hanover Bank & TrustCo. (1950): The standard for adequatenotice is WON it is reasonably certain toinform those affected or, where conditionsdo not reasonably permit such notice, WONthe form chosen is not substantially lesslikely to bring home notice than other of thefeasible and customary substitutes.

3. Shaffer v. Heitner (1977): The minimumcontacts and fundamental fairness testshould be satisfied regardless of whetherthe proceedings are in rem, quasi in rem, orin personam, and the minimum contacts

1Actions in personam are directed against specific

persons and seek personal judgments.2

Actions in rem or quasi in rem are directed againstthe thing or property or status of a person and seekjudgments with respect thereto as against the wholeworld and against particular persons, respectively.

CIVIL LAW REVIEWER Chapter II. JURISDICTION

430

PRIV

ATE

INTERN

ATIO

NAL

LAW

must exist among the forum, defendant, andthe cause of action.

4. Long-arm statutes: statutes that allow theforum state to exercise jurisdiction over anon-resident defendant, provided that theprospective defendant has sufficientminimum contacts with the forum state.

III. Ways of Dealing with Jurisdiction in aConflicts Problem

A. Dismiss the Case

Grounds—1. For Lack of jurisdiction over the subject

matter or over the parties to the suit2. On the ground of FORUM NON

CONVENIENS

Doctrine of Forum Non Conveniens—(Asked in 94, 04 BAR EXAMINATIONS)1. This literally means “the forum is

inconvenient.”2. This doctrine requires the court to dismiss

the case on the ground that the controversymay be suitably tried elsewhere. The doctrine of forum non conveniens

should NOT be used as a ground for amotion to dismiss because Sec. 1, Rule16 of the Rules of Court does notinclude said doctrine as a ground.

The propriety of dismissing a casebased on the principle of forum nonconveniens requires a factualdetermination; hence it is more properlyconsidered as a matter of defense.(Bank of America NT&SA v. CA, 2003)

3. Reasons for applying forum non conveniens:a. To prevent abuse of court’s processesb. Burdensome on the court or taxpayersc. Local machinery is inadequate to

effectuate a right (no way for the court tosecure evidence and attendance ofwitnesses)

d. Avoid global forum shopping

B. Assume Jurisdiction

1. Proceed to Characterization (discussedunder CHARACTERIZATION)

2. Apply either: Forum Law or Foreign Law (willbe discussed more on the CHOICE OFLAW) When the court assumes jurisdiction, it

may apply forum law or foreign law. Forum law should be applied whenever

there is good reason to do so becauseforum law is the basic law.

Factors which justify the application of forum law1. A specific law of the forum decrees that

internal law should apply.2. The proper foreign law was not properly

pleaded and proved.3. The case falls under any of the exceptions

to the application of foreign law:a. The foreign law is contrary to an

IMPORTANT PUBLIC POLICY of theforum

b. The foreign law is PROCEDURAL innature

c. The foreign law is PENAL in natured. The case involves real or personal

PROPERTY SITUATED IN THEFORUM (Lex Situs)

e. The issue involved in the enforcement offoreign claim is FISCAL orADMINISTRATIVE

f. The foreign law is contrary to GOODMORALS (contra bonus mores)

g. The application of foreign law will workUNDENIABLE INJUSTICE to citizens ofthe forum

h. The application of foreign law mightendanger the VITAL INTERESTS of thestate

CIVIL LAW REVIEWER Chapter III. CHOICE of LAW

431

PRIV

ATE

INTERN

ATIO

NAL

LAW

Chapter III. Choice of Law

I. APPROACHES TO CHOICE OF LAWA. TRADITIONL; APPROACHESB. MODERN APPROACHES

CHOICE OF LAW The determination by the court of whether to

apply forum law or foreign law The factors that justify exercise of judicial

jurisdiction may be the same factors used todetermine choice of law.

BUT, jurisdiction and choice of law are twodifferent concepts. A court may exercisejurisdiction but apply foreign law OR notexercise jurisdiction, although its internal lawmay be applied as the proper law.

I. Approaches to Choice of Law

Ideally, all choice of law theories should advancethe notions of JUSTICE and PREDICTABILITY.

A. Traditional Approaches: emphasizesimplicity, convenience and uniformity

1. Vested Rights Theory An act done in a foreign jurisdiction

gives rise to the existence of a right ifthe laws of that state provide so. Thisright vests in the plaintiff and he carriesit with him to be enforced in any forumhe chooses to bring suit

The applicable law is the law of theplace of occurrence of the LAST ACTnecessary to complete the cause ofaction.

If the place of the last act creates nolegal right, there is nothing for the forumto recognize and enforce, even if its ownlaw creates such a right.

Illustration: Carroll is an employee ofAlabama Corp. Both EE and ER areresidents of Alabama. Carroll wasinjured in the course of work inMississippi due to negligent conduct ofco-employees in Alabama. Mississippibars recovery. Alabama makes ERliable. Carroll files suit in Alabama.There can be no recovery in this case.Although it is claimed that the negligentconduct was done in Alabama, the lawof Mississippi should be applied whichbars recovery since the injury wassustained in that state and such injurycreated the cause of action. It is the lawof the place of the LAST ACT necessaryto complete the cause of action.

(Alabama Great Southern Railroad v.Carroll, 1892)

Criticism: Failure to resolve conflictscases with considerations of policy andfairness as it is too technical.

2. Cook’s Local Law Theory Treats conflicts cases as a purely

domestic case that does not involve aforeign element

Criticism: narrow-minded by favoring anexaggerated local policy

3. Caver’s Principle of Preference Choice of law should be determined by

considerations of justice and socialexpediency and should not be the resultof mechanical application of the rule orprinciple of selection.

B. Modern Approaches: relate to reachingappropriate results in particular cases

1. Place of the Most Significant Relationship Factual contacts evaluated depending

on their relative importance andrelevance to the issue at hand

Identifies a plurality of factors that mustbe considered in the light of choice oflaw principles

Among these factors are: needs of theinterstate and international system,relevant policies of the concerned andinterested states, justified expectationsof the parties, basic policies underlying aparticular field of law, certainty,predictability and uniformity of result andease in the determination of law to beapplied

Criticism: No standard to evaluatesignificance of each contact

In applying the grouping of contacts theory,courts, instead of regarding as conclusivethe intention of the parties or the place of themaking or performance, lay emphasis ratheron the law of the place which has the mostsignificant contacts with the matter indispute. (Auten vs. Auten, 1954)

2. Interest Analysis Looks at the policy behind the laws of

the involved states and the interest eachstate has in applying its own law.

Factual contacts alone do not determineoutcome of the case UNLESS theyreflect a state policy which would beadvanced by the application of thesubstantive state law.

CIVIL LAW REVIEWER Chapter III. CHOICE of LAW

432

PRIV

ATE

INTERN

ATIO

NAL

LAW

Court determines whether the caseinvolves APPARENT, TRUE or FALSEconflict.a. True Conflict – If there is an

apparent conflict, the court takes asecond look on the policies andinterests of each state. If both havereal interests in applying their law,then apparent conflict is a trueconflict.

b. False Conflict – If only one state hasan actual interest in having its lawapplied and the failure to apply theother state law will not impair itspolicy

Criticisms:a. Conflicts cases were ordinarily

concerned only with private and notgovernmental interests.

b. ii.Not all state legislatures publishreports that explain background andpurpose of laws, thus courts are leftto speculate.

Illustration:B and J, NY residents, met a caraccident in Ontario thru J’s fault. B suedJ in NY for damages. Ontario barsrecovery under a guest statute. NY doesnot have a similar rule. B should beallowed to recover. NY had a greaterand more direct interest than Ontario.NY’s policy is to afford compensation toa guest tortfeasor host while Ontario’spolicy is to prevent fraudulent collusionto the prejudice of Ontario defendantsand insurance companies. Ontario hadno interest in denying a remedy to a NYguest against a NY host. (Babcock vs.Johnson, 1963)

3. Comparative Impairment Court weighs conflicting interests and

apply the law of the state whose interestwould be more impaired it its laws werenot followed

4. Trautman’s Functional Analysis Looks into the general policies of the

state beyond those reflected in itssubstantive law and to policies andvalues relating to effective andharmonious intercourse between states.

Looks at the policies and considers theirrelative weight (“policy-weighing’)

Considers whether the law of a statereflects an “emerging” or “regressing”policy

5. Leflar’s Choice Influencing Considerations(BOPIS)a. Predictability of results;b. Maintenance of interstate and

international order;c. Simplification of the judicial task;d. Application of the better rule of law;e. Advancement of the forum’s

governmental interests

CIVIL LAW REVIEWER Chapter IV. CHARACTERIZATION

433

PRIV

ATE

INTERN

ATIO

NAL

LAW

Chapter IV. Characterization

I. TYPES OF CHARACTERIZATIONII. DEPECAGE

CHARACTERIZATION (Asked in ‘94) The process by which a court at the

beginning of the choice of law processassigns a disputed question to an areaof substantive law.

I. Types of Characterization

A. Subject-Matter Characterization

Classification of a factual situation into alegal category

Illustration: Principal authorizes a person toact as his agent in another country. Agentcommits a negligent act. The law that willdetermine the principal’s liability depends onthe court’s characterization of the case as:a. Contractual: Law of the place where the

contract of agency was entered into; orb. Tortious: Law of the place where tortious

conduct or injury occurred

B. Substance-Procedure Dichotomy

Classification of a factual situation into eitherprocedural or substantive

It directs the court to the extent it will applyforeign law.

1. If issue substantive: court MAY applyforeign law or forum law

2. If issue procedural: court will apply forumlaw REASON: It would be too burdensome

and inconvenient on the part of theforum to apply procedural laws ofanother country

3. Two issues whose classification (asprocedural or substantive) is debatable:a. Statute of Frauds

Substantive: if it forbids the creation ofobligation (e.g., void contracts)

Procedural: if it forbids the enforcementof the obligation(e.g., unenforce-ablecontracts, Art. 1403 of Civil Code)

b. Statutes of Limitations Procedural: traditionally classified as

procedural because they only bar thelegal remedy without impairing thesubstantive right involved.

Substantive: when limitation is directedto a newly created liability sospecifically as to warrant saying that itqualified the right. (SPECIFICITY TEST)

A law on prescription of actions is suigeneris in Conflict o Laws in the sensethat it may be viewed either asprocedural or substantive, depending onthe characterization given such a law.(Cadalin v. POEA Administrator, 1994)

BORROWING STATUTE: (Asked in 94BAR EXAMINATIONS) Bars the filing of a suit in the forum

if it is already barred by the statuteof limitations in the place where thecause of action arose

Characterization of a statute intoprocedural or substantive becomesirrelevant when country of forumhas Borrowing Statute

Many states including thePhilippines have passed borrowingstatutes to eliminate forum-shopping

Section 48 of Code of CivilProcedure: “If the laws of the stateor country where the cause ofaction arose, the action is barred, itis also barred in the PhilippineIslands.”

II. Depecage

Literally means “to dissect” Different aspects of a case involving a

foreign element may be governed bydifferent systems of law.

Depecage is the process of cutting up thecase issue by issue and applying thepertinent laws to the different aspects

Merits of Depecage: Allows the otherrelevant interests of the parties to beaddressed; permits the court to arrive at afunctionally sound result without rejectingthe methodology of the traditional approach.

Illustration: A man dies intestate domiciled inState A and with movable properties in State B.The conflict rules of State A refer to the laws ofthe domicile to determine how the man’s estateshould be divided. The intestate law of State Bgives the widow a definite share in the estate ofthe deceased. But the determination of the WONthe woman who claims a share in the estate is a“wife” is referred to family law, not the laws ofsuccession.

Application of Depecage in the case: Law governing movable properties and

successional rights of spouse: embodysubstance of claim

Validity of marriage: affects solutionbecause it answers a preliminary orincidental question.

CIVIL LAW REVIEWER Chapter V. RENVOI

434

PRIV

ATE

INTERN

ATIO

NAL

LAW

Chapter V. Renvoi

(Asked in ‘97 BAR EXAMINATIONS)

I. DEFINITIONII. WAYS OF DEALING WITH RENVOI

I. Definition

A. Definition A procedure whereby a jural matter

presented is referred by the conflict oflaws rules of the forum to a foreignstate, the conflict of laws rule of which,in turn, refers the matter to the law of theforum or third state.

Does not apply to a false conflictproblem

Remission: reference is made back tothe law of the forum

Transmission: reference to a third state

B. Usefulness Used to avoid unjust results

C. Criticisms1. If both courts follow the same theory, there

would be no end to the case since the courtswould be referring it back to each other.

2. Courts may be unnecessarily burdened withthe task of identifying the choice of law rulesof another state.

Illustration:

There is Renvoi through Remission.

II. Ways of Dealing with Renvoi

A. Reject the Renvoi Conflict Rules of the forum court refer

the case only to the INTERNAL LAW ofanother state.

Internal Law of the foreign state isapplied by the forum court.

B. Accept the Renvoi The court may refer not just to another

state’s internal law but to the whole lawwhich includes choice of law rulesapplicable in multi-state cases.

Internal Law of the forum court or a thirdstate is applied.

Has the same effect as applyingSingle Renvoi

Aznar vs. Garcia, (1963): Art. 16 of thePhilippine Civil Code provides that thenational law of the decedent governs thevalidity of his testamentary dispositions.Such national law means the conflict oflaws of the California Code, whichauthorizes the reference or return of thequestion to the law of the testator’sdomicile. The conflict of laws rule inCalifornia refers back the case, when adecedent is not domiciled in California,to the law of his domicile (the Philippinesin CAB). The Philippine court must applyits own law as directed in the conflict oflaws rule of the state of the decedent.

C. Desistance or Mutual Disclaimer The forum court upon reference to

another state’s law sees that such law islimited in application to its own nationaland has no provision for application to anon-national.

The same result as the acceptance ofrenvoi but the process used by theforum court is to desist applying theforeign law.

Internal Law of the forum court or a thirdstate is applied.

D. Foreign Court TheoryThe forum court would assume the sameposition the foreign court would take were itlitigated in the foreign state.

STATE A STATE B

InternalLaw

InternalLaw

ConflictLaws

ConflictLaws

CIVIL LAW REVIEWER Chapter VI. NOTICE and PROOF of FOREIGN LAW

435

PRIV

ATE

INTERN

ATIO

NAL

LAW

Chapter VI. Notice and Proof of ForeignLaw

I. PROOF OF FOREIGN LAWII. EXCEPTIONS TO THE APPLICATION OF

FOREIGN LAW

I. Proof of Foreign Law

General Rule: Foreign law must be pleaded andproved as a fact

The party whose cause of action ordefense depended on the foreign lawhas the burden of proving the foreignlaw.

Exception: Court may take judicial notice offoreign laws which are already within itsACTUAL KNOWLEDGE such as when:

they are well and generally known OR they have been actually ruled upon in

other cases before it and none of theparties concerned claim otherwise(PCIB v. Escolin, 1974)

Foreign law proved by—1. an OFFICIAL PUBLICATION of the law; OR2. a COPY of the law attested by the officer

having the legal custody of the record, or byhis deputy. If such record is not kept in the

Philippines, it must be accompanied bya certificate that such officer has thecustody

3 Alternatives in case of failure to plead andprove foreign law—1. DISMISS the case for failure to establish a

cause of action2. Apply FORUM LAW, conclude that parties

acquiesce to its application.3. PROCESSUAL PRESUMPTION (Asked in

’85, ’86, ’87, ’88,‘89, ’90, ’91, ’92, ’93 and‘94) Forum presumes that the foreign law is

the same as the forum law.

Factors in deciding whether to applydomestic law or decide against the party whohas the burden of proving the contents offoreign law—1. degree of PUBLIC INTEREST involved2. ACCESSIBILITY of the foreign law

materials to the parties3. probability that the plaintiff is merely

FORUM-SHOPPING4. SIMILARITIES between the forum law and

foreign law

II. Exceptions to the Application ofForeign Law

1. Local law expressly so provides2. Failure to plead and prove the foreign law or

judgment3. Exceptions to the rule of comity (4P-FAG-

UV):o The foreign law is contrary to an

IMPORTANT PUBLIC POLICY of theforum

o The foreign law is PROCEDURAL innature

o The foreign law is PENAL in natureo The case involves real or personal

PROPERTY SITUATED IN THEFORUM (Lex Situs)

o The issue involved iin the enforcementof foreign claim is FISCAL orADMINISTRATIVE

o The foreign law is contrary to GOODMORALS (contra bonus mores)

o The application of foreign law will workUNDENIABLE INJUSTICE to citizens ofthe forum

o The application of foreign law mightendanger the VITAL INTERESTS of thestate

CIVIL LAW REVIEWER Chapter VII. NATIONALITY

436

PRIV

ATE

INTERN

ATIO

NAL

LAW

Chapter VII. Nationality

I. DETERMINATION OF NATIONALITYII. PROCEDURE FOR NATURALIZATIONIII. LOSS OF PHILIPPINE CITIZENSHIPIV. PROBLEMS IN APPLYING THE NATIONALITY

PRINCIPLE

Most civil law countries such as thePhilippines follow the NATIONAL LAWTHEORY: (Asked in 98, 04, BAREXAMINATIONS)

It is the nationality or citizenship of theindividual, which regulates the following: Civil status Capacity Condition Family rights and duties Laws on Succession Capacity to succeed

According to the Supreme Court, it is aconflict of laws theory by virtue of whichjurisdiction over the particular subject matteraffecting a person is determined by thelatter’s nationality. (Ellis vs. Republic, 1963)

In the Philippines, the nationality principle isexpressed in Art. 15 of the Civil Code asfollows:

Article 15, Civil Code. Laws relating to family rightsand duties, or to status, condition and capacity ofpersons are binding upon citizens of the Philippineseven though living abroad.

I. Determination of Nationality

Each state has the prerogative and authority todetermine by its own municipal law who are itsnationals or citizens.

The Hague Convention on Conflict of NationalLaws states this principle in the followingprovisions:1. Article 1. It is for each State to determine

who are its nationals. This law shall berecognized by other States insofar as it isconsistent with international convention,international customs, and the principles oflaw generally recognized with regard tonationality.

2. Article 2. Any question as to whether aperson possesses the nationality of aparticular State shall be determined inaccordance with the law of that State.

The Constitution enumerates who areFILIPINO CITIZENS—

Sec.1, Art IV. The following are citizens of thePhilippines:(1) Those who are citizens of the Philippines at the

time of the adoption of this Constitution;(2) Those whose fathers or mothers are citizens of

the Philippines;(3) Those born before January 17, 1973, of Filipino

mothers, who elect Philippine citizenship uponreaching the age of majority; and

(4) Those who are naturalized in accordance withlaw.

1. Natural-Born Citizens DEFINITION: Those who are citizens of

the Philippines without having to performany act to acquire or perfect citizenship.

Two principles: JUS SOLI – looks to the PLACE of

BIRTH to determine one’snationality

JUS SANGUINIS- means rule of DESCENT OR

BLOOD- Principle followed in the

Philippines2. Citizens by Naturalization

NATURALIZATION: confers to analien a nationality after birth by anymeans provided by law.

In the Philippines, this is done byjudicial method under CA No. 73 asamended by RA 530.

II. Procedure for Naturalization

[NOTE: N.B. This is a proper subject matter ofPolitical Law but is important to know asbackground if the Conflicts question asks you todecide the Choice of Law involving nationality.This was asked in the bar exams as part ofPRIL.]

Qualifications for Naturalization—1. Must not be less than 21 years old on the

date of the hearing of the petitions2. Resided in the Philippines for a continuous

period of not less than 10 years

EXCEPTION: may be reduced to 5 years inthe ff. cases:a. Honorably held office under the

Government or any of its subdivisionsb. Established a new industry or introduced

a useful inventionc. Married to a Filipino woman/man

CIVIL LAW REVIEWER Chapter VII. NATIONALITY

437

PRIV

ATE

INTERN

ATIO

NAL

LAW

d. Engaged as a teacher in a public/privateschool, not exclusive for a particularnationality, for 2 years

e. Born in the Philippines

3. Of good moral character, believes in theConstitution, and conducted himself in aproper and irreproachable manner duringthe entire period of his residence

4. Own real estate in the Phils. worth not lessthan P5,000 or have a lucrative trade,profession or lawful occupation

5. Must be able to speak and write English orSpanish and any one of the principalPhilippine languages

6. Enrolled his minor children in any of thepublic or private schools recognized by theBureau of Private Schools where Phil.history, government and civics are taughtduring the entire period of the residencerequired of him, prior to the hearing of hispetition

Disqualifications for Naturalization—1. Convicted of a crime involving moral

turpitude2. That the applicant’s state of origin does

not grant reciprocal rights to Filipinocitizens at the time of the hearing of hisapplication

Procedure for Naturalization—1. DECLARATION OF INTENT 1 year prior to

the filing of the petition, unless the applicantis exemptedEXEMPTIONS:a. Persons born in the Philippines and who

have received their primary andsecondary education in schoolsrecognized by the Government here andare not limited to any race or nationality

b. Resided continuously in the Philippinesfor 30 years or more

c. Widow and minor children of an alienwho declared his intention to become acitizen and dies before he is actuallynaturalized

2. PETITION FOR NATURALIZATION3. PUBLICATION in the Official Gazette or

newspaper of general circulation4. HEARING5. If the petition is approved, there will be a

REHEARING two years after thepromulgation of the judgment awardingnaturalization

6. Taking of the OATH of ALLEGIANCE

III. Loss of Philippine Citizenship

A Filipino citizen may lose his citizenship in thefollowing ways:1. By NATURALIZATION in foreign countries;2. By EXPRESS RENUNCIATION of

citizenship;3. By subscribing to an OATH of

ALLEGIANCE to support the constitution orlaws of a foreign country upon reaching 21years of age or more, subject to certainexceptions;

4. By rendering service to, or acceptingCOMMISSION IN THE ARMED FORCES ofa foreign country, subject to certainexceptions;

5. By having been declared by competentauthority, a DESERTER of the Phil. armedforces in time of war, unless pardoned orgranted amnesty

6. A WOMAN, who upon her MARRIAGE TOA FOREIGNER, if by virtue of the laws inforce in her husband’s country, sheACQUIRES HIS NATIONALITY; and

7. By CANCELLATION of the certificate ofnaturalization for the ff. reasons:i. Certificate was obtained fraudulently or

illegallyii. Within 5 years of issuance of certificate,

returns to his native country or foreigncountry to establish a permanentresidence therein;- Remaining for more than 1 year in

his native country; or- Two years in any foreign country,

considered prima facie evidence ofintention of taking up his permanentresidence

iii. Petition made on an invalid declaration ofintention

iv. Minor children failed to graduate from apublic or private schools recognized bythe Bureau of Private Schools where Phil.history, government and civics aretaught, through the fault of their parents

v. Naturalized citizens has allowed himselfto be used as a dummy

NOTE: A judgment directing the issuance ofcertificate of NATURALIZATION IS A MEREGRANT OF POLITICAL PRIVILEGE, and thatneither estoppel nor res judicata may be invokedto bar the State from initiating an action for itscancellation

CIVIL LAW REVIEWER Chapter VII. NATIONALITY

438

PRIV

ATE

INTERN

ATIO

NAL

LAW

IV. Problems in Applying the NationalityPrinciple

1. Dual or Multiple Citizenship Since each state determines its own

nationals, it is possible that an individualmay be CLAIMED AS A NATIONALOF TWO OR MORE STATES.

In the case of Nottebohm (1955), theICJ applied the principle of EFFECTIVENATIONALITY to determine the rightsof an individual who may claim multiplenationality DEFINITION: a genuine bond of

attachment between the individualand the State

NOTE: The Philippine Constitutiondiscourages dual or multiple citizenship asinimical to the national interest and shall bedealt with by law.

2. StatelessnessTwo senses:a. DE JURE statelessness: A person has

been stripped of his nationality by hisformer government without having anopportunity to acquire another

b. DE FACTO statelessness: A personpossessed of a nationality but whosecountry does not give him protectionoutside its own territory (refugees)

NOTE: the 1951 Geneva Convention of theStatus of Refugees and the UN Conference onthe Elimination or Reduction of FutureStatelessness was convened to reducestatelessness. It provides: Conditions such as marriage, divorce,

adoption, naturalization, expatriation,would not cause an individual to lose hisnationality upon the risk of being stateless

States cannot deprive their nationals oftheir identity as punishment or asinstrument of discrimination

Jus sanguinis country shall grant itsnationality to a person born within itsterritory, if he would otherwise be stateless

Jus soli country shall grant its nationalityto a person who would otherwise beconsidered stateless when one of hisparents is a citizen of the contractingstate.

NOTE: As long as stateless persons possess allof the qualifications, they can be naturalized asPhilippine citizens without the requirement ofreciprocity.

CIVIL LAW REVIEWER Chapter VIII. DOMICILE

439

PRIV

ATE

INTERN

ATIO

NAL

LAW

Chapter VIII. Domicile

I. DOMICILEII. COMPARATIVE MERITS AND DEMERITS OF

DOMICILE AND NATIONALITY

I. Domicile

A. Municipal Law/Philippine Law Definition:

PERSON DOMICILENatural persons Art. 50. For the exercise

of civil rights and thefulfillment of civilobligations, the domicileof natural persons is thePLACE OF THEIRHABITUAL REDENCE.

Juridical persons Domicile is determinedby the LAW CREATINGOR RECOGNIZING IT. In the absence

thereof, place wherelegal representationor place of businessis.

CONFLICTS of LAW DEFINITION(Restatement):The place with which a person has aSETTLED CONNECTION for certainlegal purposes, either because: His home is there; or Place is assigned to him by law

To acquire a domicile, there must be aconcurrence of TWO ELEMENTS:i. INTENTION to make it one’s

domicile; andii. PHYSICAL PRESENCE

Residence, on the other hand, simplyrequires bodily presence of an inhabitantin a given place.

B. General Rules on Domicile1. No person shall be without domicile

A person’s domicile of origin prevailsuntil he acquires anew domicile

2. A person cannot have two simultaneousdomiciles for a given purpose or a giventime under the law of a particular state

3. Domicile establishes a connectionbetween a person and a particularterritorial unit

4. The burden of proving a change ofdomicile is on the person alleging it

C. Kinds of Domicile1. Domicile of Origin

A person’s DOMICILE AT BIRTH

LEGITIMATE CHILD ILLEGITIMATE CHILDFollow the FATHER’sdomicile

Follow the MOTHER’sdomicile

2. Domicile of Choicei. A person’s VOLUNTARY

DOMICILE The place freely chosen by a

person sui juris (of full age andcapacity)

ii. To acquire it, there must be aconcurrence of: ACTUAL RESIDENCE; and ANIMO MANENDI - intent to

make it one’s home

DISTINCTIONDomicile of

OriginDomicile of

ChoiceAs to:conditionnecessary foritsabandonment

Strongerpresumption infavor of itscontinuance

NOT lost bymereabandonmentand remains untilreplaced by adomicile ofchoice

As compared todomicile oforigin, lesspresumption infavor of itscontinuance

As to: capacityfor revival

Presumed to berevived once thedomicile ofchoice is givenup and before anew one isacquired(reverter orrevival doctrine)

Deemedextinguished byremoval ofintent even priorto theacquisition of anew domicile

3. Constructive Domicile Domicile assigned by operation of

law to persons legally incapable ofchoosing their own domicile: Minors Domicile automatically

changes when their father’sdomicile changes

Take the domicile of theirmother upon their father’sdeath

Mentally disabled If capable of understanding

his act and itsconsequences, he may beable to acquire a domicile ofchoice although he may not

CIVIL LAW REVIEWER Chapter VIII. DOMICILE

440

PRIV

ATE

INTERN

ATIO

NAL

LAW

be considered competentenough to enter into allaspects of civil life.

Married women

D. Special Problems in Domicile

1. People kept under physical or legalcompulsion Military personnel Prisoners Persons with disabilities who are

confined in institutions

MODERN VIEW: A person undercompulsion should not be barred fromproving that he intended to establishpermanent abode in the same place,even after compulsion has beenremoved

2. Married women seeking to acquire aseparate domicile from her husband

Art. 69, Family Code. The husband and wife shall fixthe family domicile. In case of disagreement, the courtshall decide. The court may exempt one spouse fromliving with the other if the latter should live abroad orthere are other valid and compelling reasons for suchexemption…

MODERN VIEW: Dispenses with anypresumption that the wife’s domicile isthe same as her husband’s.

II. Comparative Merits and Demerits ofDomicile and Nationality

A. Nationality1. Merits

a. logical since lawmakers considered thequalities of its citizens in making thelaws

b. easily verifiable from documents

2. Demeritsa. does not provide solution with respect to

stateless persons those with multiple nationalities states with diverse legal systems

b. person’s ties to his nation may be soattenuated if he has lived in anothercountry most of his life

B. Domicile1. Merits

a. genuine link—adequate basis for him toexercise rights therein and the state toimpose duties on him

b. suitable for countries with a federalsystem

2. Demeritsa. not ascertainable without first resorting

to the courts to establish whether or notthere is animo manendi

b. concept not clear-cut--- differs widelywith some states distinguishing betweenresidence and domicile or attributingdifferent meanings of domicile fordifferent purposes

c. if domicile of origin given much weight,connection attenuated

CIVIL LAW REVIEWER Chapter IX. PRINCIPLES on PERSONAL STATUS and CAPACITY

441

PRIV

ATE

INTERN

ATIO

NAL

LAW

Chapter IX. Principles on PersonalStatus and Capacity

I. DEFINITIONII. BEGINNING AND END OF PERSONALITYIII. ABSENCEIV. NAMEV. AGE OF MAJORITYVI. CAPACITY

I. Definition

Includes CONDITION and CAPACITY andmore specifically embraces:1. beginning and end of human personality2. juridical capacity3. capacity to act4. family relations5. succession

Applicable Law1. If Filipino: Philippine Law2. If Alien: Law of nationality or domicile,

depending on the law applicable in thealien’s country

NOTE:1. Laws relating to Family rights and

duties, Status, Condition or Legalcapacity of persons are binding oncitizens of the Philippines, even thoughliving abroad [Art. 15, CC]

2. Status, once established by the personallaw of the party, is given universaljurisdiction. Hence, aliens can sue andbe sued in our courts subject toPhilippine procedural law even onmatters relating to their status, but thelaw to be applied is their personal law.

II. Beginning and End of Personality

A. Governing Law—The determination of the exact momentpersonality begins is governed by thePERSONAL LAW of the individual.

B. Rule under Philippine Law—1. Beginning of personality: BIRTH

a. Birth determines personality; but theconceived child shall be considered bornfor all purposes that are favorable to it,provided it be born later with theconditions specified by Art. 41, FC. [Art.40, FC]

b. For civil purposes, the fetus isconsidered born if it is alive at the time itis delivered from the mother’s womb.

However, if the fetus had an intra-uterine life of less than 7 months, it isnot deemed born if it dies within 24hours after its complete delivery fromthe maternal womb. [Art. 41, FC]

2. End of personality: DEATHa. A declaration of death issued by a

competent court is considered valid forall purposes.

b. Upon death, some of the decedent’srights and obligations are totallyextinguished, while others are passedon to his successors

III. Absence

A. Governing Law—Determined by the PERSONAL LAW of theindividual

B. Three Ways of Dealing with Absence1. Rebuttable Presumption that a person is

dead when he has been absent for anumber of years

2. Judicially Instigated and established whichresults in legal effect similar to those ofdeath

3. A Judicial Decree shall have to be issueddeclaring the person dead before legaleffects of death take place

NOTE: Philippine laws follow the rebuttablepresumption.

C. Rule under Philippine Law1. Ordinary Absence [Art. 391, CC]

a. After the absence of 7 years, it being

unknown whether the absentee still

lives, s/he shall be presumed dead for

all purposes.

b. EXCEPTIONS

i. For the purpose of opening hissuccession, the absentee ispresumed dead after 10 years.

ii. If s/he disappeared after the age of75 years, 5 years will be sufficient

c. Computation of Period—The computation of the 7 year periodbegins not from the declaration ofabsence, but from the date on which thelast news concerning the absentee isreceived [Jones v. Hortiguela, 44 Phil149]

CIVIL LAW REVIEWER Chapter IX. PRINCIPLES on PERSONAL STATUS and CAPACITY

442

PRIV

ATE

INTERN

ATIO

NAL

LAW

2. Extraordinary Absence [Art. 391, CC]—

The following are presumed dead for ALLpurposes, including the division of estateamong the heirs: (VA-A-D)a. A person on board a Vessel during a

sea voyage, or an Aeroplane which ismissing, who has not been heard of for4 years since the loss of the vessel oraeroplane;

b. A person in the Armed forces who hastaken part in war, and has been missingfor 4 years;

c. A person who has been in Danger ofdeath under other circumstances andexistence has not been known for 4years. [Art. 391, CC]

3. Rule for purposes of remarriage [Art. 41, FC]a. For purposes of remarriage, the spouse

present must first institute a summaryproceeding for the declaration ofpresumptive death of the absenteespouse, without which the subsequentmarriage is void ab initio.

b. The periods under Arts. 390 and 391,CC have been reduced to 4 and 2 years.

IV. Name

A. Governing Law—Determined by PERSONAL LAW

B. Rule under Philippine Law1. No person can change his name or surname

without judicial authority [Art. 376, CC]2. Recognized justifiable causes for change of

name:a. when the name is ridiculous, tainted with

dishonour, or is extremely difficult towrite or pronounce

b. when the request for change is aconsequence of change of status

c. when the change is necessary to avoidconfusion

d. a sincere desire to adopt a Filipino nameto erase signs of a former nationalitywhich unduly hamper social andbusiness life.

NOTE: RA 9048 (Change of first name andcorrection of clerical/typographical errors)

V. Age of Majority

A. Governing Law—Determined byPERSONAL LAW

B. Age of Majority under Philippine Law—Age of majority is 18 years old [RA 6809]

VI. Capacity

A. General Rule—Determined by PERSONAL LAW; itattaches to a person wherever he is

B. Exceptions1. Liability on Tort—subject to the law of the

place of tort2. Restrictions on the contracting capacity

of a married woman—in some jurisdictions,subject to the law governing the personalrelations between spouses

CIVIL LAW REVIEWER Chapter X. FAMILY RELATIONS

443

PRIV

ATE

INTERN

ATIO

NAL

LAW

Chapter X. Family Relations

I. MARRIAGEII. DIVORCE AND SEPARATIONIII. ANNULMENT AND DECLARATION OF

NULLITYIV. PARENTAL RELATIONSV. ADOPTION

I. Marriage

A. Definition

Art. 1, FC. Marriage is a special contract ofpermanent union between a man and a womanentered into in accordance with law for theestablishment of conjugal and family life. It is thefoundation of the family and an inviolable socialinstitution whose nature, consequences, and incidentsare governed by law and not subject to stipulation,except that marriage settlements may fix the propertyrelations during the marriage within the limits providedby this Code.

B. Extrinsic Validity of Marriage1. Formal Requisites of Marriage under

Philippine Law [Art. 3, FC]a. authority of the solemnizing officerb. valid marriage license except in the

cases provided for in Chapter 2 of Title Ic. a marriage ceremony which takes place

with the appearance of the contractingparties before the solemnizing officerand their personal declaration that theytake each other as husband and wife inthe presence of not less than twowitnesses of legal age.

2. Determination of Extrinsic Validity

Art. 26, FC. All marriages solemnized outside thePhilippines in accordance with the laws in force in thecountry where they were solemnized, and valid thereas such, shall also be valid in this country. xxx

Art. 2, Hague Convention. Formal requirements formarriage are governed by the law of the state ofcelebration.

a. GENERAL RULE—LEX LOCI CELEBRATIONIS (law of theplace of celebration) [Art. 26, FC; Art. 2,Hague Convention on Celebration andRecognition of the Validity of Marriages]

b. EXCEPTIONS: The following marriagesare void even if valid in the countrywhere celebrated [Art. 26, FC]:

i. those contracted by any party below18 years of age even with theconsent of parents or guardians [Art.35(1), FC]

ii. bigamous or polygamousmarriages not falling under Art. 41,FC [Art. 35 (4), FC]

iii. those contracted thru mistake ofone contracting party as to theidentity of the other [Art. 35(5), FC]

iv. those subsequent marriage withoutrecording in the civil registry thejudgment of annulment ordeclaration of nullity, partition anddistribution of properties and thedelivery of the children’spresumptive legitimes [Art. 35(6),FC]

v. a marriage contracted by any partywho, at the time of the celebration,was psychologically incapacitatedto comply with the essential maritalobligations of marriage, even if suchincapacity becomes manifest onlyafter solemnization [Art. 36, FC]

vi. incestuous marriages [Art. 37, FC] marriages between ascendants

and ascendants of any degree,whether legitimate orillegitimate; and

marriages between brothers andsisters, whether of the full orhalf-blood

vii. void marriages for reasons ofpublic policy [Art. 38, FC] marriages between collateral

blood relatives, whetherlegitimate or illegitimate, up tothe 4

thcivil degree

marriages between step-parentsand step-children.

marriages between the adoptingparent and adopted child

marriages between the survivingspouse of the adopting parentand the adopted child

marriages between the survivingspouse of the adopted child andthe adopter

marriages between an adoptedchild and a legitimate child ofthe adopter

marriages between adoptedchildren of the same adopter

marriages between partieswhere one, with the intention tomarry the other, killed that otherperson's spouse, or his or herown spouse.

CIVIL LAW REVIEWER Chapter X. FAMILY RELATIONS

444

PRIV

ATE

INTERN

ATIO

NAL

LAW

NOTE: These exceptions put into issue thecapacity of the parties to enter into the marriageand therefore relate to the substantiverequirement for marriage. Since the personal lawof the parties, e.g. the national law of Filipinos,governs the questions of intrinsic validity ofmarriages between Filipinos abroad, the aboveenumerations are exceptions to lex locicelebrationis precisely because they arecontrolled by lex nationalii

C. Intrinsic Validity of Marriage [refers tocapacity of a person to marry]

1. Intrinsic validity is determined by the parties’personal law, which may be theirdomiciliary or national law.

NOTE:a. Laws relating to Family rights and

duties, Status, Condition or Legalcapacity of persons are binding oncitizens of the Philippines, even thoughliving abroad [Art. 15, NCC]

b. When either or both of the contractingparties are citizens of a foreign country,it shall be necessary for them before amarriage license can be obtained tosubmit a certificate of legal capacity tocontract marriage, issued by theirrespective diplomatic or consularofficials [Art. 21, FC]

c. Marriages enumerated under Art. 26(2),FC are void even if valid in the countrywhere celebrated.

2. Intrinsic requirements of marriage underPhilippine Law [Art. 2, FC]a. legal capacity of the contracting parties

who must be male and female; andb. consent freely given in the presence of

the solemnizing officer3. The Hague Convention on Validity of

Marriages allows a contracting state torefuse recognition of the marriage in the ff.Cases [CR-M

3]:

a. one of the parties did not freely Consentb. spouses were Related, by blood or

adoptionc. one of the parties did not have the

Mental capacity to consentd. one of the spouses was already Marriede. one of the parties has not attained the

Minimum age, nor acquired thenecessary dispensation

NOTE:1. Rule on Proxy Marriages (Asked in 85-89

BAR EXAMINATIONS)—a. proxy marriages, where permitted by the

law of the place where the proxyparticipates in the marriage ceremony,are entitled to recognition in countriesadhering to the lex loci celebrationisrule, at least insofar as formal validity isconcerned

b. internal Philippine law, however, doesnot sanction proxy marriages.

2. Consular Marriages—Marriages between Filipino citizens abroadmay be solemnized by a consul-general,consul or vice consul of the Republic of thePhilippines [Art. 10, FC].

D. Effects of Marriage1. Personal relations between the spouses

a. governed by the national law of theparties

NOTE: If the spouses have differentnationalities, generally the national law ofthe husband may prevail as long as it is notcontrary to law, customs and good morals ofthe forum.

b. Under Philippine law, personal relationsbetween the spouses include [Arts. 68,70-71, FC]i. mutual fidelityii. respectiii. cohabitationiv. supportv. right of the wife to use the

husband’s family name

2. Property relationsa. The Hague Convention declares that the

governing law on matrimonial propertyis:i. the internal law designated by the

spouses before the marriageii. in the absence thereof, the internal

law of the state in which thespouses fix their habitual residence

b. Rule under Philippine law [Art. 80, FC](Asked in ’03 BAR EXAMINATIONS)i. In the absence of a contrary

stipulation in the marriagesettlements, the property relations ofthe spouses shall be governed byPhilippine laws, regardless of theplace of the celebration of themarriage and their residence.

CIVIL LAW REVIEWER Chapter X. FAMILY RELATIONS

445

PRIV

ATE

INTERN

ATIO

NAL

LAW

ii. Rule is inapplicable: if both spouses are aliens with respect to the extrinsic

validity of the contracts affectingproperty not situated in thePhilippines and executed in thecountry where the property islocated

with respect to the extrinsicvalidity of contracts entered intoin the Philippines but affectingproperty situated in a foreigncountry whose laws requiredifferent formalities for itsextrinsic validity.

c. Doctrine of Immutability ofMatrimonial Property Regime—Thechange of nationality on the part of thehusband or wife does not affect theoriginal property regime EXCEPT whenthe law of the original nationality itselfchanges the marital regime, hence, theproperty regime has to changeaccordingly.

II. Divorce and Separation

A. Rule under the Hague Convention (Askedin 94 BAR EXAMINATIONS)—The granting of divorce or separation mustcomply with the national law of the spousesand lex fori (law of the place were theapplication for divorce is made)

B. Divorce Decrees Obtained by Filipinos1. General Rule: Decrees of absolute divorce

obtained by Filipinos abroad have no validityand are not recognized in PhilippineJurisdiction.

NOTE: Statutory Basesa. Laws relating to Family rights and

duties, or to the Status, Condition andLegal capacity of persons are bindingupon citizens of the Philippines, eventhough living abroad [Art. 15, CC]

b. Prohibitive laws concerning persons,their acts or property, and those whichhave for their object public order, publicpolicy and good customs, shall not berendered ineffective by laws orjudgments, or by determinations orconventions agreed upon in a foreigncountry. [Art. 17(3), CC]

2. EXCEPTION: Art. 26(2), FC—

Where a marriage between a Filipino citizenand a foreigner is validly celebrated and adivorce is thereafter validly obtained abroadby the alien spouse capacitating him or herto remarry, the Filipino spouse shall havecapacity to remarry under Philippine law

NOTE: In the case of Republic v Obrecido,G.R. No. 154380 (2005), the Supreme Courtinterpreted the exception in Art. 26(2), FC asapplying to valid marriages between two Filipinocitizens, where one party is later naturalized as aforeign citizen and obtains a valid divorce decreecapacitating him or her to remarry.

C. VALIDITY OF FOREIGN DIVORCEBETWEEN FOREIGNERS (Asked in 75-79,80-84, 85-89, 95-99,00-04, 05-08 BAREXAMINATIONS)—

1. A foreign divorce will be recognized in allcontracting states if, at the date of theinstitution of the proceedings [HagueConvention on the Recognition of Divorceand Legal Separation]:a. either spouse had his habitual residence

there;b. both spouses were nationals of that

state; orc. if only the petitioner was a national, he

should have his habitual residence there

2. While there is no provision of law requiringPhilippine courts to recognize a foreigndivorce decree between non-Filipinos suchwill ne recognized under the principle ofinternational comity, provided that it doesnot violate a strongly held policy of thePhilippines.

III. Annulment and Declaration of Nullity

A. Jurisdiction to Annul1. vested in the court of the domicile of the

parties2. jurisdiction over the non-resident defendant

is not essential

B. Governing Law1. Lex loci celebrationis—determines the

consequences of any defect as to form2. In general, the same applies with reference

to substantive or intrinsic validity. But withregard to capacity of the parties to marry,national law is determinative.

CIVIL LAW REVIEWER Chapter X. FAMILY RELATIONS

446

PRIV

ATE

INTERN

ATIO

NAL

LAW

IV. Parental Relations

A. Determination of Legitimacy of a Child1. Legitimacy: personal law of the parents,

which may either be their domicile ornationality

2. In the Philippinesa. the legitimacy of the child is governed by

the national law of the parentsb. if parents belong to different

nationalities, legitimacy of the child isgoverned by the national law of thefather

c. personal law of the illegitimate child isthe mother’s personal law

B. Parental Authority Over the Child—Personal law of the father controls andrights and duties of parents and child

NOTE: Reference to the personal law of thefather may result in joint exercise of parentalauthority over the property of the child by thefather and mother; or, in the case on theillegitimate child, to the mother alone

V. Adoption

(Asked in 75-79, 95-99, 00-04, 05-08 BAREXAMINATIONS)

A. DefinitionThe act by which relations of paternity andfiliation are recognized as legally existingbetween persons not so related by nature

B. Domestic Adoption Act of 19981. An alien may adopt, provided he is:

a. of legal ageb. in possession of all civil capacity and

legal rightsc. of good moral characterd. no conviction of any crime involving

moral turpitudee. emotionally and psychologically capable

of caring for childrenf. at least 16 years older than the adopteeg. in a position to support and care for his

childrenh. his country has diplomatic relationsi. residence in the Philippines for at least 3

continuous years prior to the filing of theapplication for adoption and maintainssuch residence until the adoption decreeis entered

j. certificate of legal capacity to adopt inhis country to be issued by hisdiplomatic or consular office; and

k. his government allows the adoptee toenter his country as his adoptedson/daughter

2. The requirement on residence andcertificate of qualification may be waived forthe following:a. A former Filipino citizen who seeks to

adopt a relative within the 4th

degree ofconsanguinity or affinity; or

b. One who seeks to adopt the legitimateson/daughter of his/her Filipino spouse;or

c. One who is married to a Filipino citizenand seeks to adopt jointly with his/herspouse a relative within 4

thdegree of

consanguinity or affinity of the Filipinospouse

3. The requirement of 16 years differencebetween the adopter and the adoptee maybe waived if the adopter is:a. The biological parent of the adopteeb. The spouse of the adoptee’s parent

C. Inter-country Adoption1. Definition—

A socio-legal process of adopting a Filipinochild by a foreigner or a Filipino citizenpermanently residing abroad where thepetition is filed, the supervised trial custodyis undertaken, and the decree of adoption isissued outside the Philippines.

2. This is an alternative means of childcare ifthe child cannot be cared for in any suitablemanner in the Philippines

NOTE: Adoption is one of the ways prescribedby law for the acquisition of Filipino citizenship

D. Effects of AdoptionTwo different legal orders:1. If the adopters’ personal law applied—same

law governs the effects of the adoption2. If the personal law of the child determined

the creation of the legal relationship—suchlaw will cease and yield to the personal lawof the adopting parents

CIVIL LAW REVIEWER Chapter XI. PROPERTY

447

PRIV

ATE

INTERN

ATIO

NAL

LAW

Chapter XI. Property

I. CONTROLLING LAW—LEX SITUS/LEX REISITAE

II. EXCEPTIONS TO LEX SITUS/LEX REI SITAEA. TRANSACTIONS NOT AFFECTING

TRANSFER OF TITLE OR OWNERSHIPOF LAND

B. CONTRACTS WHERE REAL PROPERTYOFFERED AS SECURITY

C. INTESTATE AND TESTAMENTARYSUCCESSION

D. POLICY-CENTERED APPROACHIII. SITUS OF CERTAIN PROPERTIES

A. SITUS OF PERSONAL PROPERTY FORTAX PURPOSES

B. SITUS OF MONEYC. SITUS OF DEBTSD. SITUS OF CORPORATE SHARESE. PATENTS, TRADEMARKS, TRADE NAME

AND COPYRIGHTF. GOODS TRANSPORTED BY COMMON

CARRIERS

I. Controlling Law—Lex Situs/Lex ReiSitae

A. General Rule: Real as well as personalproperty is subject to the law of the countrywhere it is situated [Art. 15, NCC]

B. Application of the Doctrine of LexSitus/Lex Rei Sitae

1. The capacity to transfer or acquire propertyis governed by Lex Situs.

NOTE: Transfer of property to a foreignerwho subsequently became a Filipino citizenshall be recognized [Llantino v Co LiongChong] [Asked in 00-04, BAREXAMINATIONS]

2. The formalities of a contract to conveyproperty are governed by Lex Situs

II. Exceptions to Lex Situs

A. Transactions Not Affecting Transfer ofTitle or Ownership of Land—Where the transaction does not affecttransfer of title to or ownership of the land:Lex Intentionis or Lex Voluntatis

B. Contracts where Real Property Offeredas Security—In contracts where real property is offered byway of a security for the performance of anobligation such as loan, the principal

contract is the loan while the mortgage ofthe land is only an accessorya. Mortgage—Lex Situsb. Loan Contract—rules on ordinary

contracts

C. Intestate and Testamentary Succession—Intestate and testamentary successionsshall be regulated by the national law of thedecedent, with respect to the following [Art.16(2); Art. 1039, NCC]a. Order of successionb. Amount of succession rightsc. Intrinsic validity of the testamentary

provisionsd. Capacity to succeed

D. Under a Policy-centered Approach Forum court is not bound to look to the law

of the situs when the situs of the movableproperty is insignificant or accidental

Questions relating to the validity and effectof the transfer of the movable property aregoverned by the law of the place ofprincipal use

Where the issue involves considerationsother than the validity and effect of thetransfer itself, governing law is the law ofthe state which has real interest

III. Situs of Certain Properties

A. Situs of Personal Property for TaxPurposes—The principle of mobilia sequuntur personamcannot be applied to limit the right of thestate to tax property within its jurisdiction. Ityields to established facts of legalownership, actual presence and controlelsewhere, and cannot be applied if it wouldresult in patent injustice [Wells Fargo Bankand Union Trust Co. v. CIR, 70 Phil 325(1940)]

B. Situs of Money—In Leon v. Manufacturers Life Insurance Co.,90 Phil 459 (1951), the Supreme Court heldthat the funds in question were outside thejurisdiction of Philippine courts, it havingbeen endorsed in an annuity in Canadaunder a contract executed in that country.

C. Situs of Debts—The debt is located where the debtor islocated because it is where he can be suedand the debt collected.

CIVIL LAW REVIEWER Chapter XI. PROPERTY

448

PRIV

ATE

INTERN

ATIO

NAL

LAW

D. Situs of Corporate Shares—1. The situs of shares of stock of a corporation

is considered to be at the domicile of thecorporation.

2. There is a distinction between the situs ofshares of stock and the situs of the incomederived from the sale or exchange of such.[CIR v Anglo California Bank, G.R. No. L-12476(1960)]

E. Patents, Trademarks, Trade Name andCopyright—

1. Union Convention for the Protection ofIndustrial Property: a trade name shall beprotected in all countries of the Union,without the obligation of filing of registration,whether or not it forms part of the tradename.

2. RA 8923 (Intellectual Property Code): Anyforeign corporation which is a national ordomiciliary of a country which is a party to aconvention, treaty or agreement relating tointellectual property rights to which thePhilippines is also a party or extendsreciprocal rights to our nationals by law shallbe entitled to benefits to the extentnecessary to give effect to any provision ofsuch convention.

F. Liability of the Common Carrier for Loss,Destruction and Deterioration of GoodsTransported—Law of Destination1. The law of the country to which the

goods are to be transported shall governthe liability of the common carrier fortheir loss, destruction or deterioration[Art. 1753, NCC]

2. The law of the country of destinationapplies even if the goods never reachthe destination, but does not apply if thegoods were never transported

3. If the country of destination is thePhilippines, it is Philippine internal lawon loss, destruction, or deterioration thatmust govern—the Civil Code principally,and the Code of Commerce and speciallaws like the Carriage of Goods by SeaAct, suppletorily.

CIVIL LAW REVIEWER Chapter XII. CONTRACTS

449

PRIV

ATE

INTERN

ATIO

NAL

LAW

Chapter XII. Contracts

I. EXTRINSIC VALIDITY OF CONTRACTSII. INTRINSIC VALIDITY OF CONTRACTS

A. LEX LOCI CONTRACTUSB. LEX LOCI SOLUTIONISC. LEX LOCI INTENTIONIS

III. CAPACITY TO ENTER INTO CONTRACTSIV. CHOICE OF LAW ISSUES

A. CHOICE OF FORUM CLAUSEB. CONTRACTS WITH ARBITRATION

CLAUSEC. ADHESION CONTRACTSD. SPECIAL CONTRACTS

V. LIMITATIONS TO CHOICE OF LAWVI. APPLICABLE LAW IN THE ABSENCE OF

EFFECTIVE CHOICE

I. Extrinsic Validity of Contracts

General Rule: Lex Loci CelebrationisThe forms and solemnities of contracts xxxshall be governed by the laws of the countryin which they are executed [Art. 17, CC]

NOTE:1. Contracts Before Diplomatic/ Consular

Officials: The solemnities established byPhilippine laws shall be observed withrespect to contracts executed beforediplomatic or consular officials of theRepublic of the Philippines in a foreigncountry [Art. 17(2), FC]

2. Contracts Entered Into by Letter/Cablegram, etc.: A contract accepted byletter or cablegram is presumed to havebeen entered into the place where the offerwas made. [Art. 1319(2),CC]

II. Extrinsic Validity of Contracts

Three possible laws:

A. Lex Loci Contractus (Asked in 95, 02 BAREXAMINATIONS)

1. Law of the place where the contract is made2. Merits

a. Relative ease in establishingb. Certainty and stability

3. Demerit—Unjust results when place ofmaking entirely incidental

NOTE: To determine where the contract ismade, we look to the place where the last act isdone which is necessary to bring the bindingagreement into being so far as the acts of theparties are concerned.

B. Lex Loci Solutionis1. Law of the place of performance governs2. Merit—Always connected to the contract in a

significant way3. Demerit—Not helpful when the contract is

performed in 2 or more states withconflicting laws

C. Lex Loci Intentionis1. Law intended by the parties2. Basis—

The contracting parties may establish suchstipulations, clauses, terms and conditionsas they may deem convenient, providedthey are not contrary to law, morals, goodcustoms, public order, or public policy [Art.1306, CC]

3. May be express or implieda. Express—when the parties stipulate that

the contract be governed by a specificlaw, such law will be recognized unlessthere are cogent reasons for not doingso.

b. Impliedi. Based on the contemporaneous and

subsequent acts of the partiesii. Often upheld with reference to the

rule of validity of contracts whichpresumes that the partiescontemplate to enter into a validcontract

III. Capacity to Enter Into Contracts

Determined by the personal laws of thecontracting parties

NOTE: Laws relating to Family rights andduties, Status, Condition or Legal capacityof persons are binding on citizens of thePhilippines, even though living abroad [Art.15, NCC]

IV. Choice of Law Issues in ConflictsContracts Cases

A. Choice of Forum Clause1. A case arising from a contract will be

litigated in the forum chosen by the parties ifthe choice of forum clause specificallyidentifies it as the only venue

2. When there is no fraud or overreaching, andthere is no showing that the choice-of-forumclause would be unreasonable and unjust,the clause must be given effect

CIVIL LAW REVIEWER Chapter XII. CONTRACTS

450

PRIV

ATE

INTERN

ATIO

NAL

LAW

B. Contracts with Arbitration Clause—An arbitration clause, stipulating that thearbitral award of an arbitral panel in aforeign country is FINAL and BINDING, isnot contrary to public policy. It does not oustour courts of jurisdiction as the internationalarbitral award, the award of which is notabsolute and without exceptions, is stilljudicially reviewable under certain conditionsprovided for by the INCITRAL Model Law onICA as applied and incorporated in RA 9285(Korea Technologies Co., Ltd. V Lerma,2008)

C. Adhesion Contracts1. Adhesion contracts are not entirely

prohibited. The one who agrees to thecontract is in reality free to reject it entirely; ifhe adheres, he gives his consent.

2. It is void if there is UNDUE ADVANATGE onthe part of the dominant party

3. Any ambiguity is construed strictly againstthe drafter

D. Special Contracts1. Sale or barter of goods: lex situs2. Simple loan granted by financial institutions:

law of the permanent place of business3. Loan granted by a private individual or

where the subject matter of the loan ispersonal: law of the place where the loanwas obtained

4. Pledge, Chattel Mortgage, Antichresis: LexSitus

5. Carriage of Goods by Seaa. The law of the country to which the

goods are to be transported shall governthe liability of the common carrier fortheir loss, destruction or deterioration[Art. 1753, NCC]

b. The law of the country of destinationapplies even if the goods never reachthe destination, but does not apply if thegoods were never transported

c. If the country of destination is thePhilippines, it is Philippine internal lawon loss, destruction, or deterioration thatmust govern—the Civil Code principally,and the Code of Commerce and speciallaws like the Carriage of Goods by SeaAct, suppletorily.

6. International Air Transportation: WarsawConvention

V. Limitation Choice of Law

(Asked in 90-94 BAR EXAMINATIONS)

1. Cannot be a law which has NOCONNECTION at all with the transaction orthe parties

2. LAW AS CHANGED will govern EXCEPT ifthe change is so revolutionary that it wasnever contemplated by the parties

3. Choice of law should not be interpreted toOUST THE JURISDICTION which the courthas already acquired over the parties andthe subject matter.

4. Cannot contract away provisions of lawespecially peremptory provisions heavilyimpressed with PUBLIC INTEREST

5. COGNOVIT CLAUSE (confession ofjudgment) valid only if the parties were ofequal bargaining power and the defendantagreed to it voluntarily.

VI. Applicable Law in the Absence ofEffective Choice

1. Law of the place of the MOSTSIGNIFICANT RELATIONSHIP with thecontract as a whole or with a specific issuearising therefrom

2. Factors to considera. Place of contractingb. Place of negotiatingc. Place of performanced. Situs of the subject matter of the

contracte. Parties’ domicile, residence, nationality,

place of incorporation, place of businessf. Place under whose local law the

contract will be most effective

CIVIL LAW REVIEWER Chapter XIII. SUCCESSION

451

PRIV

ATE

INTERN

ATIO

NAL

LAW

Chapter XIII. Succession

I. Extrinsic ValidityII. Intrinsic ValidityIII. Interpretation of WillsIV. RevocationV. ProbateVI. Administration of EstatesVII. Trusts

I. Extrinsic Validity (Arts. 17, 815-817, CC)

(Asked in 75-79, 90-94, 95-99 BAREXAMINATIONS)

PLACE OFEXECUTION

APPLICABLE LAW

Fili

pin

oT

esta

tor

Philippines Philippine Law

ForeignCountry

1. law of the place wherehe may be (lex locicelebrationis) [Art815, CC]

2. Philippine law [see IIITolentino 117]

Alie

nT

esta

tor

Philippines 1. Philippine Law [Art. 17,CC]

2. law of the country inwhich he is a citizen orsubject [lex nationali](Art. 817, NCC)

ForeignCountry [Arts.816, 17, NCC]

1. law of the place inwhich he resides [lexdomicilii]

2. law of his country (lexnationali)

3. Philippine law4. law of the place where

they were executed(lex locicelebrationis)

NOTE: Rule re: Joint Wills1. Joint wills prohibited under Art. 818, CC

executed by Filipinos in a foreign countryshall not be valid in the Philippines eventhough authorized by the laws of the countrywhere they were executed. [Art. 819, CC](Asked in 00-04 BAR EXAMINATIONS)

2. Civil Code is silent as to the validity of a jointwill executed by an alien in the Philippines. Itis suggested that that it should not beprobated if it would affect the heirs in thePhilippines.

II. Intrinsic Validity

Intestate and testamentary successions shall beregulated by the national law of the decedent,with respect to the following [Art. 16(2); Art.1039, NCC]1. Order of succession2. Amount of successional rights3. Intrinsic validity of the testamentary

provisions4. Capacity to succeed

III. Interpretation of Wills

Governed by the National Law of thedecedent

IV. Revocation

TESTATOR APPLICABLE LAW

Will

isre

voked

inth

eP

hili

pp

ines Philippine

Domiciliary

Philippine Law

Non-domiciliary[Art. 829, CC]

Will

isre

voked

ina

Fore

ign

Countr

y

PhilippineDomiciliary

1. Philippine Law2. Law of the place of

revocation (lex lociactus)

Non-domiciliary[Art. 829, CC]

1. law of the placewhere the will wasmade

2. law of the place inwhich the testatorhad his domicile atthe time of therevocation

V. Probate

A. Controlling Law—The probate of a will being essentiallyprocedural in character, the law of theforum (lex fori) governs.

B. Wills Proved and Allowed in a ForeignCountry

1. A will proved and allowed in a foreigncountry in accordance with the laws of thatcountry may be allowed, filed, and recordedin the proper Regional Trial Court in thePhilippines [RULES OF COURT, Rule 77,Sec.1]

CIVIL LAW REVIEWER Chapter XIII. SUCCESSION

452

PRIV

ATE

INTERN

ATIO

NAL

LAW

2. Requisites for Reprobate (Vda de Perez vTolete, 232 SCRA 722)The following must be proved by competentevidence:a. due execution of the will in accordance

with the foreign lawsb. the testator had his domicile in the

foreign country and not in thePhilippines

c. the will has been admitted to probate insuch country

d. the laws of the foreign country onprocedure and allowance of wills

VI. Administration of Estates

Territorial: governed by the law of the placewhere the administration takes place, and that isthe law of the country from which theadministrator derives his authority.

VII.Trusts

Extrinsic Validity: rules governing wills apply Intrinsic Validity: lex situs since a trust

involves property

CIVIL LAW REVIEWER Chapter XIV. TORTS and CRIMES

453

PRIV

ATE

INTERN

ATIO

NAL

LAW

Chapter XIV. Torts and Crimes

I. TortsA. Traditional Approach

1. Controlling Lawa. Matters Concerning Conduct and

Safety: Lex Loci DelictiCommissi

b. Matters Concerning Loss andSafety: Lex Domicilii

2. Characterization of Locus Delictia. Common Law Ruleb. Civil Law Rule

B. Modern Approaches1. Most Significant Relationship2. Interest Analysis3. Caver’s Principle of Preference

C. Foreign Torts Claims1. Transitory Nature of Torts Claims2. Conditions for Enforcement3. Alien Torts Claims Acts (ATCA)4. Rule under Philippine Law

II. CrimesA. General Rule: Lex Loci Delicti

Commissi/Locus Regit ActumB. Exceptions

1. Crimes Committed by DiplomaticOfficials; Doctrine of State Immunity

2. Crimes Committed in ForeignVessels

3. Art. 2, Revised Penal Code

I. Torts

A. Traditional Approach1. Controlling Law

a. Lex Loci Delicti Commissi (law of theplace where the alleged tort wascommitted) applies in mattersconcerning conduct and safety

b. Lex Domicilii of the parties applies inmatters concerning loss distribution orfinancial protection

2. Characterization of the place of wrong(Locus Delicti)a. Common Law: place where the last

event necessary to make an actor liablefor an alleged tort occurs (place ofinjury)

b. Civil Law: place where the tortiousconduct was committed (place ofconduct)

B. Modern Approaches1. Most Significant Relationship

a. The most significant relationshipapproach considers the state’s contactswith the occurrence and the parties

b. In the case of Saudi Arabian Airlines vCA, 297 SCRA 469, the Supreme Courthad the occasion to apply the “mostsignificant relationship” rule. In the saidcase the court laid down the followingfactors which are to be taken intoaccount::i. place where the injury occurredii. place where the conduct causing

the injury occurrediii. the domicile, residence, nationality,

place of incorporation and place ofbusiness of the parties

iv. place where the relationship, if any,between the parties is centered

2. Interest Analysis—This approach considers the relevantconcerns the state may have in the caseand its interest in having its law applied onthat issue

3. Caver’s Principle of Preference—a. Where the State of Injury provides for

higher standard of conduct or financialprotection against injury than the Statewhere the tortious act was done, the lawof the former shall govern

b. Where the State of injury and conductprovides for lower standard of conductand financial protection than the homeState of the person suffering the injury,the law of the State of conduct andinjury shall govern

c. Where the State in which the defendantwas engaged, the special controls andbenefits must be applied although theState has no relationship to thedefendant

d. Where the law in which the relationshiphas its seat imposed higher standards ofconduct or financial protection than thelaw of the State of the injury, the formerlaw shall govern.

C. Foreign Torts Claims1. Tort liability is transitory. Hence, an action

for tort may be brought wherever thetortfeasor is subject to suit.

2. Conditions for enforcement of foreign tortclaims:a. The foreign tort is based on civil action

and not on a crimeb. The enforcement of the tort would not

infringe the public policy of the forumc. The judicial machinery of the forum is

adequate for its proper enforcement3. Alien Tort Claims Act(ATCA) (Asked in 00-

04 BAR EXAMINATIONS)—

CIVIL LAW REVIEWER Chapter XIV. TORTS and CRIMES

454

PRIV

ATE

INTERN

ATIO

NAL

LAW

grants US District Courts original jurisdictionover any civil action by an alien for a tortomitted in violation of the law of nations or atreaty of the US.

4. In the Philippines, no specific statutory lawgoverns the enforcement of claims arisingfrom foreign tort.

II. Crimes

A. General Rule—Lex Loci Delicti Commissi/ Locus RegitActum (law of the place where the act wascommitted)

NOTE: Penal laws xxx shall be obligatoryupon all those who live and sojourn inPhilippine territory, subject to the principlesof public international law and to treatystipulations [Art. 14, CC]

B. Exceptions1. Crimes committed by state officials,

diplomatic representatives and officials ofrecognized international organizations(based on the doctrine of state immunityfrom suit.

2. Crimes committed on board a foreign vesseleven if it is within the territorial waters of thecoastal state, as long as the effect of suchcrime does not affect the peace and order ofthe coastal state.

3. Crimes which, although committed byPhilippine nationals abroad are punishableunder Philippine law as provided in Art. 2,Revised Penal Code:b. offenses committed in a Philippine

vessel or airshipc. forging or counterfeiting any coin or

currency note of the Philippines, or anyobligation issued by the government

d. introduction into the country of theobligations and securities mentioned inthe preceding number

e. those committed by public officers oremployees in the exercise of theirfunctions

4. Crimes against national security and the lawof nations.

CIVIL LAW REVIEWER Chapter XV. CORPORATIONS

455

PRIV

ATE

INTERN

ATIO

NAL

LAW

Chapter XV. Torts and Crimes

I. Personal Law of CorporationsA. General Law: Law of IncorporationB. Exceptions

1. Constitutional and StatutoryRestrictions

2. Control Test During WarII. Domicile/Residence of Corporations

A. General RuleB. Exceptions

III. Jurisdiction Over Foreign CorporationsA. Consent DoctrineB. Foreign Corporations Doing Business

Bound by Philippine Law1. Art. 129, Corporation Code2. Service Upon Foreign Corporations

Doing Business in the PhilippinesIV. Right of Foreign Corporations to Bring Suit

A. General RuleB. Exceptions

1. Isolated Transactions2. Action to Protect Trademark, Trade

Name, Goodwill, Patent or for UnfairCompetition

3. Agreements Fully TransactedOutside the Philippines

4. Petitions Filed Merely as CorollaryDefense in a Suit Against It

I. Personal Law of Corporations

A. General Rule—Law of the State where it is incorporated[Art. 2, Corporation Code]

NOTE: Hence, if the law creating the corporationdoes not give it authority to enter into certaincontracts, such contracts made by it in anotherstate shall be void despite the expresspermission given by the laws of that other state.

B. Exceptions1. Constitutional and Statutory Restrictions

(e.g. Art. XII, Sec. 2, 1987 Constitution)2. Control Test During War—

In wartime, the courts may pierce the veil ofcorporate identity and look into thenationality of the controlling stockholders todetermine the “citizenship” of thecorporation.

II. Domicile/Residence of Corporations

A. General Rule [Art. 51, CC]—that fixed by the law creating them,recognizing them or any other provision oflaw

B. Rule if the Same Not Fixed by Law—If the law does not fix the same, the domicile ofjuridical persons shall be understood to be [Art.51, CC]:1. place where their legal representation is

established; or2. place where they exercise their principal

functions

NOTE: A foreign corporation granted license tooperate in the Philippines acquires domicilehere.

III. Jurisdiction Over ForeignCorporations

A. Consent Doctrine—A foreign corporation shall be recognizedand will be allowed to transact business inany state which gives it consent. Theconsent doctrine is established in Sections125, 126, 127 and 128 of the CorporationCode.

.B. Foreign Corporations Doing Business in

Philippines Bound by Philippine Law1. Under Art. 129 of the Corporation Code, all

foreign corporations lawfully doing businessin the Philippines shall be bound by all laws,rules, and regulations applicable to domesticcorporations; EXCEPT:a. provisions for the creation, formation,

organization or dissolution ofcorporations

b. those which fix the relations, liabilities,responsibilities, or duties ofstockholders, members, or officers ofcorporations to each other or to thecorporation

2. Service upon foreign corporations doingbusiness in the Philippines may be made on[Rule 14, Sec. 14, RULES OF COURT]:c. its resident agenta. in the absence thereof, process will be

served on the government officialdesignated by law or any of its officersor agent within the Philippines

b. on any officer or agent of saidcorporation in the Philippines

c. thru diplomatic channels (Far EastInternational v. Nankai Kogyo, 6 SCRA725 (1962))

CIVIL LAW REVIEWER Chapter XV. CORPORATIONS

456

PRIV

ATE

INTERN

ATIO

NAL

LAW

IV. Right of Foreign Corporations toBring Suit

A. General Rule—License to transact business in thePhilippines is an essential prerequisite forfiling a suit before Philippine courts [Art. 133,Corporation Code]

B. Exceptions—1. isolated transactions2. action to protect trademark, trade name,

goodwill, patent or for unfair competition3. agreements fully transacted outside the

Philippines4. when the petition filed is merely a corollary

defense in a suit against the corporation

EFFECT OF FAILURE TO SECURE ALICENSE TO TRANSACT BUSINESS1. the foreign corporation has no right to sue in

the Philippines but it can still be sued2. although the contracts entered into may be

valid as between the parties, it may not beenforced in Philippine courts

CIVIL LAW REVIEWER Chapter XVI. FOREIGN JUDGMENTS

457

PRIV

ATE

INTERN

ATIO

NAL

LAW

Chapter XVI. Foreign Judgments

I. RECOGNITION v. ENFORCEMENTII. BASES OF RECOGNITION AND

ENFORCEMENTIII. POLICIES UNDERLYINGIV. REQUISITESV. PROCEDURE FOR ENFORCEMENTVI. EFFECTS OF FOREIGN JUDGMENTS

FOREIGN JUDGMENT: a decision renderedoutside the forum and encompasses judgments,decrees and order of courts of foreign countries.

I. Recognition v. Enforcement

A. Recognition of Foreign Judgment1. Passive act of giving the same effect that it

has in the State where it was rendered withrespect to the parties, the subject matter ofthe action and the issues involved withoutthe necessity of filing an action in the forumgiving effect to the judgment

2. Examples of foreign judgments which canonly be recognized: declaratory judgments,judgments which give no affirmative relief,judgments which determine the parties’interests in a thing or status.

B. Enforcement of Foreign Judgment1. A judgment is enforced when, in addition to

being recognized, a party is given affirmativerelief to which the judgment entitles him; itnecessarily requires the filing of an action.

2. This necessary implies recognition.

II. Bases of Recognition andEnforcement

A. Comity—In order to obtain reciprocal treatment fromthe courts of other countries, we arecompelled to take foreign judgments as theystand and to give them full faith and credit.

B. Doctrine of Obligation—1. Considers a judgment of a foreign court of

competent jurisdiction as imposing a duty orobligation on the losing litigant.

2. This is based on the vested rights theory.

III. Policy of Preclusion UnderlyingRecognition and Enforcement

The policy of preclusion seeks to protectparty expectation resulting from previouslitigation, to safeguard against theharassment of defendants, to insure that thetask of the courts not be increased by never-ending litigation of the same disputes, and—in a larger sense—to promote what LordCoke in the Ferrer’s Case of 1599 stated tobe the goal of all law: “rest and quietness.”(Mijares v Ranada, 2005)

RELATED CONCEPTS1. Res Judicata: once there is a final

judgment, resolution on the issues litigatedis binding on the parties and their privies.

2. Merger: plaintiff’s cause of action is mergedin the judgment so that he may not relitigatethat exact claim.

3. Bar: successful defendant can interpose asdefense the judgment in his favor to avert a2

ndaction by the plaintiff on the same claim.

4. Direct estoppel: relitigation of all mattersdecided are precluded

5. Indirect estoppel: all essential issues offact actually litigated cannot be relitigated.

IV. Requisites for Recognition orEnforcement

1. Foreign court had JURISDICTION over theparties and the case

2. Judgment VALID under the laws of thecountry that rendered it.

3. Judgment FINAL and EXECUTORY toconstitute res judicata in another action

4. RECIPROCITY: state where foreignjudgment was obtained allows recognitionand enforcement of Philippine judgments.

5. Judgment is for a FIXED SUM of money6. Foreign judgment not contrary to PUBLIC

POLICY OR GOOD MORALS of countrywhere it is sought to be enforced

7. Judgment not obtained by EXTRINSICFRAUD, COLLUSION, MISTAKE of fact orlaw.

V. Procedures for Enforcement

Three modes of enforcement:A. Petition1. Followed in most common law countries and

in the Philippines

CIVIL LAW REVIEWER Chapter XVI. FOREIGN JUDGMENTS

458

PRIV

ATE

INTERN

ATIO

NAL

LAW

2. The rules are silent as to what initiatoryprocedure must be undertaken in order toenforce a foreign judgment in thePhilippines. But there is no question that thefiling of a

B. Summary Proceeding1. Followed in most civil law countries2. A summary proceeding for enforcement is

provided by statute.

C. Judgment RegistrationAn authenticated copy of the foreignjudgment is filed in the registrar’s officetogether with other proofs required bydomestic laws and the foreign judgment isconverted into a local one that isimmediately executory.

VI. Effect of Foreign Judgment in thePhilippines

The effect of a judgment or final order of atribunal of foreign country, having jurisdiction torender such is as follows [Sec. 48, Rule 39,RULES OF COURT]:1. In a judgment or final order upon a specific

thing, the judgment or final order isconclusive upon the title to the thing; and

2. In a judgment or final order against aperson, the judgment or final order ispresumptive evidence of a right as betweenthe parties and their successors-in-interestby a subsequent title.

3. In either case, the judgment or final ordermay be repelled by evidence ofa. want of jurisdictionb. want of notice to the partyc. collusiond. fraude. clear mistake of law or fact

NOTE: It has been recognized that “publicpolicy” as a defense to the recognition ofjudgment serves as an umbrella for a variety ofconcerns in international practice which maylead to a denial of recognition [Mijares vRanada, 2005]

- end of Private International Law –- end of Civil Law -