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CONFLICT OF I-AWS

ARAULLO Uil!\TER SITYLAW L'BRARY

CABAI{AI UAN C ITY

Retired Jattie-of the Court of Appeals

Fortter Astistdat S olitvto*Guera/

FornerJDKC.ldge ol Calooun Ci4'

For*rr.Tortgr' F(TC o.f Caloocan Citl'

BorE*oiiori in GailLzw' 1 999 and 2003

Pmfetsor and Bar Reuieuer in Gai I l-znt

Menbe", Cnp of Ciuil l-av Profesorl

J adiaal Acatieml ol' the P hilippixu

ALICIAV. SE LLB., LL.M

CoPvrrght 200'l

by

ALICIA V. SEMPIO-DIY

TRAULTD LIUIVFRSITYLAW I .BRAR T

CAEA}IAIUAN C ITY

Any copy of this book not bearing a number and

,ig"","r. .f.he author on this page shall be denounced

u. pro.""dt.tg from an illegal source

t"., ' ti

PREFACE

Repcatedl'urped and requested br, her srucienrs a.ci bar re'lewe c.to writc a textbooli in confhct oi Larvs rvhrci.r ther. claim is a difhcullsubject and that no srmple and handv book rs available to help themstudy tire same, the undersrgned finallr, buckled dou,n and .wrote this"Handbooli on Conflrct of Laws" rn a sunphFred, quesuon-answer form.gurded bv her long experience for the past nvenn'-five or llore )/ears lnteaching the slrblect. and emphasizing and explainine with exampies tl-refundamentals and irnportant aspects of the subiect that students and bar.reviewees seem to Frnd difficult and burdensonre. This irumble rvork rs

thus dedrcated to aii the larv srudents takrng the subject this vear and in thevears to come, as well as the author's tl'rousands of former students whc,are either rcvieu'ing for the bar or are now successfu] l2s,' practiuoner-s. Itis likewise hoped that larr"'professors teaciring the srrbiect, and larr^u'ersand judges conftontcd with confucts problerns, can find thrs humblchandbook useful and heipful, especraily as rve do not have enougb lawsnor jurisprudence to guide them in all }lnds of conflicts problems. indeed,wrth dre fast advance of modem technology rn dre means of communicationbetween and arnong tire natrons of the '"vorld, the raprd growth andexpansion of internattonal trade and commerce, the influx of touristsand foreign traders to out countn as well as the massi\re migration ofour countn'rnen to v,'ork and hve rn forergn shotes, and the great increasein busir.ress uansactions of foreign corporauons rn d-re Philippines. nroreand more confhcts problems crytng for solutions will undoubtedll'ause.

The i.nr,aluabie help of her fotmer students Atn. Edr.vard Ongand bar reviewees Clarence Evangelista and Russei N'liraflor in encodingher manuscript and preparing it for prtnung ts herebv gratefullr- andsincerclv acknorvledged.

ALICIA V. SEMPIO.DIY

Quezor Cirylvlav 2t)04

N" /43LALL RIGHTS RESERVED

Bv the Author

W'iPdnted'SY'

MPC Printers8-F Pahutan St. Veterans Village

Proiect 7, Quezon Ciw

TABLE OF CONTENTS

Pagei In General 1

I Junsdrcdon and Choice of La'*' 43 Theories that Justi$' the Applicauon of the Foreign Law 1,7

4 Nature and Composition of Conflicts Rules 225 Charactenzaaon of Conflicts Rules 266 Personal Law - Theories in Determining One's Personal Law 297 The Nationaiiq' Theory 33

? g The Domrcrliary Theory 51579 The Situs or Eclectic Theory

10 The Problem of "Renvoi" 5911 Conflicts Ruies on Starus and Capaciry 65

,).2 Confltcts Rules on MarriageA. Matriage as a Conffact 74B. Marriage as a Starus 78C. Annulment and Declaration of Nulliry of Mariage 83D. Absolute Divorce 86

h E. Legal Separation or Reiative Divorce 90la- 13 Status of Cirrldren

A. Legumacy and Illegrtimacy 94B. Legrtimauon 97C. Adoption 98

14 Wilis, Succession. and Administration of theEstate of Deceased Persons 105

15 Property i1316 Contracts 122

A. Extrinsic Validiq' of Contracts 123B. Capacity of Parties 124C. Intrinsic Validity of Contracts 725D. Special l{nds of Contracts 128

17 Torts 13t)18 Crimes 13719 Busrness Assooation

A. Corporauons 143B. Partnerships 149

20 Recognition and Enforcement of Foretgn.Judgments 151

CHAPTER

CONFLICT OT LAWS

IN GENERAL

L"Defrne Conflict of Laws.

It is that part of law rvhich comes inro plav rvhen the issucbefore the court affects some fact, event or transaction that is so clearlr'connectedwith a foretgn svstem of Ia$'as to necessttate recou.rse ro thatsvstem (Clieshire, Private lnternauonal Ll ', 194i ed., p. (r).

Conflrct of Lau's embraces those universal pnnciples of ngbtand jusuce whicl'r govern the courts of one state l-raving bcfore tiremcases involvrng the operation arid et-fect of tl-re iarvs of anotirer state orcoul-rtrv (lr{rnor. Conflict of Las's. 19t)1. p .{).

Conflict of l,aws is that parr r,i the munrcrpal lau, oi zr starcwhtch directs its courts and adnlnistrative agencres, rvhetr confronteclwith a legal problem rnvolving a foreign element. rvhether or not thershould apply a foreign law or foretgn lnu's. fParas. Phil. Confhct of Lalvs.1996 ed.. p. 2).

ZJ\lhat is a Conflict of Laws case?

Anl c^"e which invoh'es facts occuning ur rnore than onc statr'or nauon, so that in deciding thc case. ir rs neccssan' to make a choiccberween the laws of drtterent srxrcs or coLrnrrles. is l C.onluct of Lau-s

I IN GENERAL CONFLICTOF LAWS

3. when the rvord ..state" is used in conflict of Laws, what does itmean?

ir inclucies nor oniy ioreign s()\'cretgn cc-runtrics or states butal.so poliUcal subdirrtsrons of states oL countrics v'hich l-rave theirovn legal sYStems, sr-rch as thc differcnt statesconstiruting the United States of America, the lederal st^tes of Austfaha,Canada, lv{ex-tco, llrazil and Germauy, etc

4. $/hy is this subiect more important in recent times than in thepast?

Witir the fast advance of modern tecirnologv in the means ofcommunicatiou betrveen and among states, the rapid growth and exPansionof internatronal trade and commerce, the influx of tourists arid f,;reigntraders to our countlv as well as the massive lnregatlon of our countrvmento rvorli and live in foreign shores, the great increase of businesstransactions of foretgn corPoratiotls n the Philippines, all these bringabout manv ar-rd varied problems tn Conflict of l,aws. Hence, tlre necessitlnor oulv for iaw]ters and judges but ft-,r: our citizens as a wholc to studvthis subject as an important department of lar'r,:,

5. Is Conflict of Laws part of International Law?

No. Althougir it is sometirnes tirought of as part of InternationalLaw because of the presence of a foreign elemetrt in a given problem, itis nor rnternational tn character but is part of the municipai law of eachstate. Br' "municipal larv" rn Conftct of l-aws is meaut the intcrnai oriocai iaw of each state, since everr' state has its orvn iuterual or loczrlsvstern of lavi so each state also has its own confltct o[ Iaws.

6. What is the reason for the diversitv of conflicts rules among thediffetent states of the wodd?

Thrs is because each group of peoplc havc a lauguage, cr-rlturc,mores and customs, rehgron, ideals and bc[etl, pecuiiar to sr,rcl.r group.rvhich or" r:eflc:ctcd or exprcssed in tl'retr 12rr5 nn6i legal strsterns. Forexalnpie, whilc the great rnajorin' of tlrc countr-ies of tirc rvorlci alkr.'vabsolute ciivorce. our coul-Itr\r sttll has not legalized absolute divorce. Ancirvhile some counlries a,:e verv liberal in grnntlns drvorces. others are notso libeml.

CONFLICTOF LAWS IN GENERAT

7. Distinguish Conflict of Laws from Public International Lap'.

(a) As to persons involved: Public Internatronal Law governssovereign states and entities that are intemationally rccognized or possessed ofinternationai personality, such as the United Nations Organization; whileConflict of Laws governs private individuats or corporations.

(b) As to nature: Public International Law is intetnationa] rncharacter; Confiict of Laws is rnunicipal in character.

(c) As to transactions involved: Public International Lawapplies onlv to transactions rn wllich only sovereign states or entitie s withinternational personality are concerned and which generally affect publicinterest; while Conflict of Laws deals with transactions stlictly pnvate innature, in which the countrv as such has genetally no interest.

(d) As to remedies applied: In a dispute between sovereignstates or tnternational entities or in cise of a violauon of InternauonalLaw, the concetned states may fitst resort to peaceful remedies iikediplomatic negotiations, mediation, inquiry and conciliation, arbitratron,or judicial settlemeflt b,v international tribunals [ke the United Nations. Ifthese temedies fail, the states concerned may resort to for:cible remedieslike severance of diplomattc relari<-rns, retorsions, reprisais, ernbargo,bovcott, non-intercourse, pacific blockades, collective measures underthe UN Charter and finallv. war.

ln Conflict of Laws, recourse is had to ;udicral or admrnistratrvetribunals in accordance with the rules of procedurc .of the country w'bererhey sit.

8. What are the sources of Conflict of Laws?

Direct soutces: Bilateral and multilateral treaties and internatic-,naiconventions; constitutions; condiltcations and statutes; iudicial decisions;and internationai customs.

Indirect sources: the samc as other branches of jau': amongotirers, the natural moral laui and the rvritrngs and treatrses of thinkersand famous writers and jurists on the subiect.

CONFLICT OIJ LAWS

JURISDICTION AND CHOICE OF LAW

1.. How does one deal with a problem in Conflict of Larvs?

(a) First. deternine rvhethcl thc courr i-ras jruisdrction ovcr thcclse. lf it has no iulrsdrctron, thc case sl.rould be drsrnisscd on tirat t:round.Ii it l"ras jurisdictron. tllc court rvill cle tcrrninc t.hether it should assumejLrrisdjction o\rer the case or clismiss it on thc ground of .ionrru nln L'ot'tzj(nian.t.

OF course. 1t is thc lat, of thc forunr that cietcrmines rvhctircr thc courtbas juflsdicUon ol'1lot ovcr thc casc.

(b) Once the coult has dctcrmined rvhethcr it has jurisdrcrion()vcr tire case. itrvili next determine rvhethcr to a1>plv tl-rc internal lal,<,,f the folurn or the proper forejsn lau', considering thc atrencianrc1f cumstances.

2. Ho*' does the court determine whether it has jurisdiction overthe case?

T'here are threc liinds of jurisdiction: (11 jud.61.ri<xr over thcsublect-matter:, (b) iurisdrctron over rirc person, and (c) jurisdiction oveltlrc t'es

^ f\e- '^ ccu''r\,n:l*Jurisdiction over the srrbiect-matrer.. -

CONFLICT OF LAWS JURISDICTION AND CHOICE OF LAW

clehned as ti,e ll()wcr to irear anci dctcrrnrnc crses oF ti-rc general class tt,whrch d-re proceedrngs in cluesuon bclons.

1a) Srnce jr-rrisdicuon over ti're sublect marrer ls conferred bv iau.lt clnnot be conferred b1' consent oi'tire partres or bv tl'reir voluntart'submission.

(b) In the PhrJrpptnes, prnsdictron o\jer the sr"rbject-marrer is foundin the Constitution and the.)udicrary Reorganizauon Act, as arnendedfludrcrarv Acr of i94ii; Batas Pambansa BIg. 129, as arnended bv Rep.Act 7691).

(c) Srnce jr-u'rsdtcuon over the subject-matter exists onlr, rn theabstract. rt mlrst bc invoked bl Frlir-rg the proper cornplaint or peduonwlth thc court. And it is dre illegauons of the complaint or peutron readin the hgirt of tl-re proper jurisdrctional laq that confer jr-rrisdtctroll on thecolrrt. lf the allegations of tl-re complaint show prinu.fttsic a lack ofjurisdiction, tirc cor-rrt must disnliss thc case outtigl.rt. Ntr prchrninalr'irearing on ti.re cvidence is needed. Il, on tl'rc other hand. thc complatnt orpctitioll. on rts f-ace , sirrxvs the l)rcscncc oI jLrrisdicti<;n, tria] must bc held.Should thc cvidcnce shorv that tirc coult rcaiiv has no junsciicti<,rr-r, thc casernust bc dismrsscr-|.

(d) ln thc reaim o[ Conflrct of ],arvs, horvevcr. there is anothcreicrnenr whrch the coult mLrst consider in detcrmining the mattcr ()flurisdrcuotr;1.e.. the possrble eniorceabilin'of rts clecrsion in loreigr ,ror../sublect to thc riqhts oi said statcs (sec lticnu'tck, lntcrlratronal J-arv [1948].p 312) 'l-hrs rs bcc;Lr.rsc rr (-onfiict t-ri Llrvs. lunsdrction is thc porvcr oftirc court oi thc ii-rrr-rm t() rcnclcr a dccrsron thar ri'ill cteatc lcual r:ightsand intcrests rvi'rrch otircl statcs will rccognrze and cniorcc-

Jurisdiction over the Person;

(a) -lurisdrcuon over thc pers()1r is the competencc ()r powcr of rc()rlrl t() rendcr r luclgrnent that rvill brnd thc parues ttrvolvcd: thcpiantrff or pctitloncr, ancl thc dcfcndant or respondent.

(b) .lunsclictrr)n ()ver the piaintrii rs acqutrccl thc tr<xnent ht'rnvoiics thc pr-rrvcr of the court bt, ilr.t tuttng tirc acttou il tirc prolrct'picaciing..f unsdicrit,n over thc clcfcndat-rt is acqurlccl rvircti hc eutcrs htslul)l)ext,r)cc ot'Lrt ti-rc coercivc pos'cr oi lcgal 1>roccss cxcrtccl bv tht

CHAPTERa

lurisdicuon orrcr tirc subjccr-rnattcr is conferrcci lrl larl arrd is

JURISDICTION AND CHOICE OF LAW CONFLICT OF LAWS

court ol'er hlm.A piantrfi. uncler tire rule oi subtntsston' mat somettmes b\'

fiirng surt v'ith t-ire couft be deemed tu conscrlt t() lts e\e;clse of iunsdrcuonover his ort€alnal cause oi acgon including counter-clarms irled br- the

defendant, and lle wouid tiren be subject r() tilc iudglrlent of the court.

As for the defendant, his personal appearar.rcc ()1. appcirrancc bv couusel

is tantamount to his giving consent tt; the c()urt's exetclse of iurisdrctronover his person, except if his appezrance of ri'rat of counsel is for tire solc

putpose of cluesuoning tire jurisdrctron o[ the court

(c) Jurisdrcuon over the defendant rrrav be acqurred througlr hrs

voiuntarv appearance, as already stated. of bv personal or substlfutedscrvice of summons on him ulldef the Rules of Court. This is referred to

as tire coefciye pr()cess in tire rnnnler pr<.,r'ided bt, Iaui

Personal setvice: "Sec. 6. Servlcc in person oll defendant -

Whenever pracdcable, tire summons shall bc served bt'handing a coP)'

thcreof tc_r tirc defendant in person. or, if l.re refuses to receive and sign

for it, bY tendering it to him." (l{uie 14, 1997 Rr"ries on civil Procedute)

substituted service; "Scc. 7. Substrtuted servicc.- If, for justifiable

causes, the dcfendant cannot be serve{ rvidtn lr rcasonablc tune as providecl

in thc prcce<ling section, servtce mal' be e ifccted (a) bv lcaving copies ofthe summons at tire <-leFendant's residence with some pefson of suitable

agc and drscreuon then residing therein' or t'b) bv leaving the copies at

clefenclant's ofltcc or rcgLtlar placc of busttless wtth some c()l'tlPetent

persorl ln ch^rge thereof." (id.)

Stflct cornpliance wlrh rllr ab,.)r,c nrles is requirc<j bef<-rrc thc

c()Llrt can accluire jurisdicUon over thc Pcrsol) of dre dcfendant (Pantuleon

u. ,'lrundon, 1 05 Phi/. 76 I : .\'eqnttt a. I-,e/ronclo. I 0 5 Phil' I 1 )9)"lbus' servlce

on a \2-year old daughter of the defendarrt is not vahd substitutedse rvice because of tire child\ lack of suitable age and drscretion (Sequitrt u.

Itlrondo,,/). Howcver. tite quesuon t>f cr(>ncous scrvtce of summous

tnLlsr l)e raised bcforc judgnent is rcuderccl. or tl-ris woulcl be a clcar casc

r>f rvaiver (J,tranilia u. c)Lniule.s. 96 Pt)i/. j) Nioreover, deiccuvc scn'ice

rnav bc cured bv actr-ral receipt o[ the strnrtrtons bv thc clcfcudant. or if inanY other lTranner. knowledge of thc exrstcncc of the casc si-tt>uld comtto iris attenuon (Sequito u Lttrondtt, id )

CONFLICTOTLAWS JURISDICTION AND CHOICE OF LAW

Jurisdiction over the Res:

-lurisdictron over the re.i or thing is jurisdrctron over theparticular subject-matter in controversr', regardless of tl-re personswho mav be rnterested therein. The basrs of the exercisc of this jurisdictionis the presence of the propertv wthrn the territorial iurisdicuon of theforum, even though the court rlav not have personal iurisdicuon over thepersons whose interests in the properw are affected. This is because thepurpose of the suit is not to impose a personal habiiiw on anvone but itis to affect the interests of ail persons rn a thing. Lxamples are landreglstration cases and adrniralW cases where the purpose is for the judgmentto bind the whole wodd insofar as the subject land or vessel is concernedand not just the interests of specific persons. This llnd of jurisdicuon isreferred to as jurisdiction in rezz, as distinguished from jurrsdrction izpetonam whtch binds onlv the parues and their succcssc.,rs-in-interest.

What about acuons quai in rcrn? In an action qua.ri iu rem, tltepurpose is neither to rlTrpose a persoull habi.hn or obhgation uP()n

^nvot]e,nor to affect the interests ol aii persons in a thrng, but to affcct theinterests of particular persons in a thing. In sucl.r case, the court mavrender vatd judggnent when it has iurisdiction over tl-re particular personswhose interests are affected. Examples are foreclosltre of a mortgage,partition of land, or an acuon to qutet tide to propern'. An actron affectingthe personal status ofthe plarnuffrs aiso classiFred as an acdon quati in rem

under Ruie 14. sec. 1 5 of the 1 997 lluies on Civil Procedure. ln actions zz

tem. act:tons quLtti in rem, or'those involving the personal statr'ls of theplaintifl exlraterritorial service of summous bv pul>llcatron is all<;wecl.

3. How may service of summons be effected?

ln acdons ifi psfflnam, scrvice oi summons mat bc bt llcrsonalservice or subsututed service, as pornted out above. Sen'ice bv publicationwould not be sufficient, whether the defendant is in tl.rc i)hilippincs or not(Pantaleon u. Arundon. 105 Phil 75/).

When, then. is setvice by publication allorved? Summons brpubhcation is authorizcd onit'iu thrce cases:

(a) lf the acrt<>n ts in ran;(b) if dre acuon rs quati in rum. or(c) It tl-re action involves thc Pcrsonal statr-rs of the plarntifi

'(Rule 14. sec. 15. 1997 Rules on Civil i)rocedure i

IURISDICTION AND CHOICE OF LAW CONFLICT OT LAWS

When rr-ral extraterritorial service oi sumrnous be effecteci-:Sec. 15. i{ule i-t. id.. provicies fcrr four rnstanccs wi-rereln exffaterrttortaiservlce of sumtlons tnat bc mircie: llamci\':

(a) \\hen the dcttnciant does not reside and is not found in tl're

Phihppines. and the action affects the personal status of tireplarn u ff:

(b) \lhen the defendant does not reside and is not found rn thePhihppines, and the actlon relatcs to or thc sr-rblect of wirichis, propern'wrthrn the l)luhppmes treal or pcrsonal). rn whichthe defendant has a claim a hen or interest, actual or contingent;

(c) When the defendant is a non-resident but the subject of theaction rs properry located in the Philippines, in whtch tirereiief demanded consists. whollv or in patt. rn exciudtng tl-re

defendant from any interest therein; and(d) \X'hcn propertv of a non-resident defer.rdant has been

attached n thc Phiiipprnes.

In tl're last case, hower.cr, u4riie a l'rit of attachmentrnav be rssr-red by the court upon apphcatron, sard v'rit cannot belmplemented untll the court iras accluired jurisdictron over thcnon-residcr-rt defendant, for urithout such jurisdtctron, the courthas no porver ancl allthoriq' to acr 111 any manlrcr against thedefendar-rt, and an1' court order to that effect rvill nor bind sarddefendant (.Dn,ao l)3ht and PrnuerC,o., lnc. t'. C.-'1..204 5'Cl\'1 i|)lteel )

Hov, mav extraterritorial service be effected?

Such serrice ma},, by leave of court, bc effecred:(a) By personal selvice as under sec. 6, Rule i.l;(b) Bv publicatron. but copv oi the summons and the order of

the court must be senr bv registered rnail to the dcfcndant'slast known address:

(d) Irt anv other manner that dre court mav deem sufficient. Irbrexample. bv rcgistered mail(,N\idge4' t FernandeT. 61 SCK'1 23).

4. Illustrative cases on the problem of jurisdiction:

(a) Mar, a Fiirpino permanenr residenr of Cahiornia. USA, carne

CONFLICTOFLAWS'URISDICTION

AND CHOICE Or LAW

to the PhiJ-ippines on vacation. while here, he had an affak w,rth andimpregnated Rose. Learnrng of Rose's pregnancy, Mar took the firsiavailabie piane to the L'.S. rf, after the birth of het child, Rose fiies anaction against Mar, who happens to have some properties in thePhilippines, for. recogmuon of her child with supporq would the actionprosper, summons having been served on Mar only by publication,

As to the recogninon of ltose,.s bab1,, ves, beca.se that is anacrion that affects the srarus of the child. so tirat sumrions bv publicauonwould be sufhcient for the colur to acguire j'risdrcti.n o'et N{ar (scc.15, llule L1, 1997 Rules on Crvil Procedure).

But the clernand for sr-rpport of thc child agairst l'lar will notprosper, because it would be a judgmcnt tr puronant, ancl surnmons b.'pubhcation wouid not give the court jur-iscliction over Mar.

(b) Joe, a Fil-ipino non-residenr, married Susan in tire pl-rilippineswhile on a short vacauo'l here, '"itir.nr re'ealing to susan tl-rat he rsalreadv a mar'ied rnar. After Joet deparrure for hrs lorergn residence.Susan filed againsr, ]inr an acuon for thc declaratron of the nulhrv of theirrnatriage and damages, as Joe happe's to h^r,e some properties herc.Upon the hli^g of her petitro', S'san also asked the court for a v"'rit ofprelir-ninarv attacl-rmenr against some of Joe's properties in this countr\..would susan's acuon lor declaration of nul[tv and damages against.]oeprosper, sumfi)ons having been served on thc larfer bv puithcation?

For the declarauon of nullirv oi marriage, \,cs. because that aslisfor a declaration of the personal statrs of Susan, equrvalent to an actioncluasi in rem.

But as to the demand for damages rvith a rvrit of prcliminan.attacirment, it was held in the recent case of Dauao I ght and power Co.,Inc. u C..,1., .rupru. that while the court could issue said writ, it cannot bcimplemented unul the court has accprired jurisdrction ovcr the non-resident defendant, which can be done onlv bv personal or subsurutedservice of summons on the latter, because a judgment for damages is a

iudgment in pertonam.(c) X. credrtor of Y (a residenr of Spain), filed an acrion agarnst

Y for tire foreclosure of mortgage over a propern- given to hrm br, \' assecurin' for tl-re pavmenr of a dcbt conrracred br' \' while he rvas i. tircPirrirppines. In iris acuon, X l)so pravcd for dehcrencl, juclgrncnt ln casc

10 IURISDICTION AND CHOICE OF LAW CONFLICT OF LAWS

thc properw tnortgavccl lvor.rld not bc suificicnt to satlsfi'thc debt. ,\gatr-r,sumlnons was servcd on Y b-r'pubiicauon. \\buid the actton ptosperr

As to tl-re foreciosure of n-rortgagc. \'es. bccatlsc lt is an ncuonquai in rem.Butas to the detnand for deficiencv judgrnent. no. because itrs asking for a iudgment in pcnonum agarnst Y

5. Mention othet points to remember on the matter of iurisdiction:

(a) Once the plainuff hies an action before a Pirilippine court,wl.retl'rer he be a Fihpirro ciuzen or a foreigner, a resident or non-residentof the Philrppines, he submits hrmself to the iurisdictlon of the court afldputs the iudrcial machinerv into actron. Flence, he is now subiect to anv

counterciaims, cross-clatms, etc' that the defendant nlal' Put up underPhilipprne larv. In choosrng n Paructlllir forum, tl-re plandf[ has acceptcdthe entire judiciai machiuery of ti.re forurn completeil', so that he mustaccept not onlv tts benefits but its burdens as well.

(b) As for the defendant, he becomes subiect to the court''s iunsdicuonas to all subsecluent matters in the same suit, like appeals. And even if he

leaves the state o[ dre forum prior to tl-re final clcterminatiotr c.'f tireactron agarnst hrrn, jlrrisdiction of the court over him contintles.

6: Explain why the court may refuse to exercise jurisdiction over a

case on the basis of the principle of forum non conveniens.

As has been said before, even tf the court has jr"rnsdictioll over a

confltcts case, it ma1,, bv rnvoking the princrple of forun nzn tluuunreni.

rcfuse to exercise cr assttlne that ltrrisdiction, in vies'of an'{ oi thefollowing practical reasons:

(a) The evidence and the witncsses m2l'not be readtil avarlabie inthe forum;

(b) The court dockets of tl.rc forum ma1' alreaclt be clogged s<r

that to pennit additional cases "vouid iran-rper the speedr'administrauon of iustice;

(c) The belief that the matter can bc better uied and decided rnanother iurisdiction, either bccause the main aspccts of thecase transpircd there or the rnaterial wrtnesses have theirresidence therel

(d) To curb the evils o[ "forum si-ropping";1.e., the non-resident

CONFLICT OF LAWS IURISDICTION AND CHOICE OF LAW 1I

plai.tiff r-rrgirt h^'e trled the casc rn thc ir.rlur_' meleh. rc,secllrc l)focccir,rr.el adlantag.cs 01. t() ;lnlr()\, or ltrrrass the.lt'icntirrr::r'e)'firc forura iras Do lraLuctrlar inrcrcst t. tirc casc, thc paruc:;

not beillEr ciuze's .f t'e 10rr-r'r or are resrcle'ts elsewhcre; orthe subject-rnr -ter of trrc casc ertolvecl s.mervhere elsel

(f) other collrts are ope' and trrc case rra'rre better triecr ' saidceLtrtsl

ft) 'I'he rnadcc|.ra., of trre local j*drcial maci''c^. for effccrr_rafi'.,thc nght sorrgl-rt tc.r l>e enforced by thc plarntrfL ot o

(h) 1'he difficuln. of asccrraining the ibrcign larv apphcablc.(See Strmson, Co'fhct of Larvs, pp 3ag-352; (.anacla A,laltitt3 Co.t. Paftenon .Stcanthil>, 28i Lr..f . 1l ). 12 j: Hdre t,. Neu )b* 1n.,,. (0..15 l;ct/. (2(/)#q

Example: Several Gcrm^n crtize's brought rnsurarcc craimsagainst the Nerv \brii Life lrs. cr. .' insnralrcc policies issrecl inGerrnanr. -\lthougb the plarntifir- were citizcns and resrdc'rs.fGermanv and de fendar.rr wrs a Ne*'\brk CorPoration, suit was broughtin oregon, u.S.A. rvhcle defendant hacl an agent on .rrl',orn sunrr.,rc-,rr.v"'as se-rved.

Issue: Nfat' thc Oregon court. in the exercise t-rf rts discretion.refusc to taiic cognizance of tlic casc?

Held: Yes, on the groun c1 of .1orum noft LankntcttL.e becar-rse:(a) Bodr parrics werc non-rcsidcrrts of the forum;(b) 'fhe courts of Germanv and Net, yor:li arc opcn ancl

iu'crl()lrrng, and sc^'icc ca' bc rlirde .' thc dcfe'dant 'rcrrirer jru'isdrcuon;(.) 'lb requirc dcfencia'r ro clcfe'cl the acti.n in tl.rc forun rv.ulcl

in'rpo"^e upon it great and unnecessar-t.lnconvcrlencc ancl compclit to produce records and papers whicir rverc of daill usc inits current business;

(d) 'fhe case could consume months of ti.re rirne of rhc cr>urr.resultiug rri dclay, inconvcnience, ancl expense t() ()the rLrrgants rvho are entitlecl to involie thc coult's jurisdiction.(.Hcint r. \n,)brk )t,;. Co.. supr.ti)

Warning: Itemernbcr, however, that the doctrinc shoulcigeneralh' appll onlv if the defendant is a corporation. lior if ti.rc

72 IUIIT'DICTION AND CHOICE OF L,AW CONFLICI OF LAWS

clefcriclant ts an inciivrdual. thc propcr: forum tnm' not be ablc to '.'tctlultc

ir-rnschctron over httl ifor examplc. )'rc rlugirt not bc'resicirue t)-rerc'). thusleavrng tlrc piarnufi *'itirciut anl rencdt iJttnt.trtti, .w.bn':.

7. After the court has acquired jurisdiction over n conflicts caseand has decided to assume that jurisdiction, u'hen is it bound toaPPlv the internal or domestic la'w (lex fotr)?

Tl-rere are at lexst three (3) instance s rvl.rerr tire forr'un has to appiltl'rc inter nal or dorncsltc lnxv (lex fo..ilrn clcciding a casc in conflicts of lau',

t,i:,,

(a) \\hen the larv of the f<-lrtul exptcssh'so provides tn rts

conflicts rulcs;(b) \!hen tl.rc proper forcign lru' has not been ptoperll' pleaded

ancl proved:(c) \\,hen thc casc invoh'es anl of the exccptions to tire application

of the ploper torctgn 1211'; ii.c.. e\ccptions t,-r courttt-).

8. Give examples of cases rx'hich require the application ofPhilippine internal or domestic law' (lex for\.

(a) \lhencver lencl involved itr+ire suit rs locatecl rn thc I)hilrpptnes,Philrp1;rne iarr'ol thc lc.>: silu.t rs apphcd (.\rt i 6. titst par., Neweivrl (-,rdc.,

(b) l{cg;rrtling thc pt'opcrrv rtlaltt>t.ts of thc sPr.,uscs. ;\rt 8() oftirc lranrh-(,odc provicics tbat tlt-the allsctlcc of .a corltrarlstipr,riati<-rn ur a tnarriagc scttlcment. the propertt'relatiotrs ofthe spotrses sl-rrll bc g<.,r'cmccl bv PLrilipprnc laws, rcsardlcssoi thc placc of thc cclcll-ation of thc tnirrriagc anci theirrcsicleucc.'fhc onlt,exccPtttlrt ts rvhcu both sllouscls arc alictls.

(c) \X/ircn r Filqlrr<, tathcr t'itlr ,\tncricatr cirrlclrcn (rvho bccrtncsuch utrdcl thc rulc of ./t1., .rr,1, dics, itis sttcccssiou shtll be

soverncd bv Philpprnc lar'" (scc. par:., -\rt. 1(r, Ne*' (,ivilCr>de).

(d) if a rviil cxeclrted bv au alicn abt'oacl is revolictl in otrr couuft\',the revocntiott urttst crxrplv ri'ith thc fomulitic.- of J)irilippineiarv (-\rt. El9. Nc*' Civil (-,rcic).

9. Explain rvhv the foreign lau' cannot be applied if it has notbecrr pleaded and proved.

CONFLICT OF LA}^'s JURISDICTJON AND CHOICE OF LA}\' I.1

-This rs the sec'nd case rvhercrn the rntel'ai .r clor",-,e sdc iau, .itire forum (itx tori) rvill be appiiecl: th:rt is. when tire proper foreig. iauhas not bee' properlv pleaded and proved. 'rirc reason i, thnt ,r,r.courts cannot take ludicial noucc oi forergn iarvs, So that if thc Droperforcign lau'is 'ot pleaded (rn tirc cornpiarnt c,r peuu.,n. or in rhe irnsr,,,ctor an\r othcr rcsllonsrve pleadint) ancl is not pl'()vcn :Ls a fact, the cor.Lrrbas the right to presnlDe that tire aPpliclbie forergn iarv is tire sa'rc as thcinternal or dolncstlc law of the t<>rurn a'd should, theref'r-c. app)v thtlatter law (4don.qu. Cheon1ScngCrc, 4J Pl)il. 1);5.1 loc I-.ton3u. ,\'),quza, /6Phi/. 1)7; Itn y. Collector, 36 Pltti. 172; I'luenr u. I li.c. 5l Pltil. 6/0; ln ra'l-ettate I'-stutt ol Suntql, 95 P/ti/. 500).

(a) In connection with the foregoing quesrion, lror:r.. is afoteign law proved under our Rules of Court?

If rhc larv is written ir r-nat' be proved b1':

(1) ,\n official pubhcation rher'cof. or(2) A copv ofthe larv attestcd bl thc otttcer har-ing iegrl

custodri of rlrc- rccolcl or b',' his clcPr,rt1,, irccr>nrpaniccllrl a certiIcatc ol rrrl l)hihppinc cmbassl. c()r)suilr.or forcigr-r sclvicc oft]ccr rrr thc tbrcign c()Llrrrr\'\\ [re'jcthe recc-ird is kcpt, and auther.rticatecl bl rhc scal oihis offlcc. (lturlc 132, scc. 25. Rer'. Rr.rlcs of (.<;urt)

li tl-re las' is rrnu'ritten. it nlav bc 1>rovccl l-ly:

(1) 'I'hc oflrl tcstrttrol'tr- of c.rpe rt wirncsscs. ,ir'(2) B,v printccl atrcl publishcd boolis of rcpor,:s rif

dccisions of the c<-lur-rnf inr,oived, if provcrl to bccommt.rnll aclmittcd ir.r irs ccurrs. (RLrle 1 3(), scc. -15,

rd)

(b) What is meant bv the "proccssual" presumption of lar.v?

This rule mcans that rvircn the l)rc)per f<rrcrgn l:rs. hesnoI bccn proprerh ltr<tved. thc c<>Ltrt o1- tirc ft;mnt rnirr'Plcslurrc that satcl forcipr-r iau i:r tht.salrtc as rrs l,rcai oiclomcstic lat', rl'iricir it cen norv apnlr',

10. How is a foreign larv that has been duly pleaded and pnn'ed to

.11 IURISDICTION AND CIIOICE OF LAI\ CONFI,ICT OF LAWS

be interpreted bv our courts?

,'\s a gencral ruie. a folergn lx\\,tirnr hls bccn duiv plcadecl lnciplor.ed should irc ql'en bv or-rr cr)ur:ts tire sarnc intcrprctatlon as thaiqtven bt the toreign tribr.tnals of thc countn'rvhcrc ti'rc iat,cor-nes frorn.

A possibie excep[on is a casc t4rcte sotnes.hcre in our lav"'s,thcrc ts ir statute s'orded idenxcallv as thc iorcign iarv. s<; thirt our courtscannot bc blamecl if thev disregarci thc forcign inter:pretation oi sardtbrergn lav' and grve it tirc same interprt)tadon prcvlousl,v gl.en bv ourcoufts.

lL. When a case involves any of the exceptions to the applicationof a foreign law-, the rulc is that the foreign law cannot be appliedand the courts should instead applv the domestic or local lau'.Wltat are these exceptions?

(a) When the application of the foreign law would runcounter to a sound and established public policy of the forurn.

Examples:

(l) \\,e cilnnot enforcc in this coutrtrv a. dn'orce lau, of a

foreign corlntr\r if the prrttcs arc- Fiiipir"rc,s. If. however.tire prrtics are a ljiiiprr.r<; and a forcigr-rcl and the lattervaiidir. obtans a divolce abroad capacitating him or herto femattl'. the Filipino spouse can also marrtr again (-1f t.26. scc. par.. Famtlt Coclc).

(2) -\ ioint t'ili exccutcd br. Fiirprnr,s iocaih' ol lr a forcigncountrl is not vaLid (Arts. [118, ti19. Nerv Civil (,ode).

(3) Incestuous marnagcs r.urcicr fhc Ijanrih'Codc and thoseconsidered vord bv tl-rc Codc br reas<>n oIpublic policl.are nuil and r-oid. even if thel lre val-id ir-r other counuies(Arrc. 3?. 3ti. I;amrlv Codc). Horvevet, thcse provisionsapplv onlv to Filipinos.

(b) When the foreign law is contrary to the almost universallr.conceded principles of moralitv (contra bonos mores):

CONFLICT OF I,AIVS JURISDICTTON AND CHOICE O}. LAW 15

xgreemcnts'ndcr fo'cign iar's ti-rat cor.rupt tire propc'ldrnttrtstrrttorr rri itisLlcc .)r'tr'wilrcl cl.lrnci: a.rrr,raa,- t.,n'da,torelgn ial's to cernrl)t publrc offrcrajs: ancr rn gerrcral.

^rltrallsacttons thitt tnirtngc goi-rcl ntoralrn' ^r .,r.r,j"rat',rod br. th.

forum anci thosc rncor-rsisrcnt u'itir tj-rc bcsr rlrtcrcsts oi its peoplr.

(c) When the foreign law involves procedural matters

'fhere ar-e no.r'cstccl nqircs ur n_rlcs of procedurc; hcncc. apaf n'to au action n-rrrst submrt himsclf to drc proceciural fcrrnra.htresof the fon-rm. e\cept rvhc:n the lau' is both procedural anclsubstantn'c, hlic the rules on prescliptlon. and thc Statutc ofl;rar.rds rvhich undcr Phiiipprne larv are substantivc. l-Iencc. anAmerican cannot insist on a jr.rrt, trial in the 1)hilippines: neitl-rcrcan he insist in the applicatron oi Amcrican procedural lau,s in a

case in the Phihpprncs rvlrcrc' irc is a parq'.

(d) When the foreign law is penal in characrer:

Crimes committed in foreign countries are violationsofpenal laws ofthose counfties and cannot be prosecuted here.especially as we follow the pdnciple of territoriality in crirninallaw:

,\ "pcn:rl clause" Ln a contfact cntc-rccl lnto abroad lrra\.,horvever, bc enforccd lrcre bccansc such clausc is not crirrinai innatute bur onh,' provicies for hcpridrtccl dan'rages.

(e) When thc law is purelv fiscal (i.e., revenue-producing)or administrative in llature:

\\c are not bour)J t,r cnforcr.tirreign re\'('nu(.,)r-administrative lau's. \\'e are llot conccrne cl rvith thc collccrionoI taxes b1' foreign coulrtries or.r'tth forcign laws rclating tcrgovernmt'ntal functrons or m;lttcrs.

(f) When the foreign law might work undeniable injusticeto the citizens or residents nf the forum:

Examples: Forergn iarvs recognizing prostitutron;

I rrrt'tgn i;rrvs that s'ould result or cau.ie ru;usrict. r,,

16 ]uRrsDICTrON AND CHOTCE OF LAW CONFLICT OF LAWS

cltizens or rcsidents of our countrv sirouid not be eniorced orEven effect irere. An exalrlple rs a foreign iaw purung tire ageof n-rajorin'at 21 ancl refusrng ro recr)gnlze conuacrs of fji]rprrosabroad u4ro are abor.e 18 bur beiou'21. consicicnng tirat rhc ageof majonn- in our cour-rtn is 18.

(g) When the application of the fbreign law would endangerthe vital interests of the State:

The natronal interests and secur.itv of our countfi' shouldnot be jeopardized by forergn larvs, nor sirould rve enfl.rrceioretgn laws that undermrne oLlr govcrnmental Drocesscs.

(h) When the case involves real or personal propertvlocated in our countrv.

Remember that we apply tlie hx ita.r or lex rei ilac to allproperties, witether real o-r personal, iound or locateci in thePhilippines (first par.. Art. 16. Nerv Civil Code).

CONFLICT OF LAWS

THEORIES THAT JUSTIFY THEAPPLICATION OF THE FOREIGN I.AW

1. What are the theories that iustift rhe court, in a conflicts case,to apply the foreign law instead o[ its own domestic or internallaw?

Sonre o[ the traditional thcorics in cleciding rvhethcr to apply thelocal or domestic larv or the foreign iarv ur a conflicts casc are thc follorvurg:

(a) Thc theorv oi comin'S) The vestcd-right theorl,(c) The theorv of local larr'(d) The theon'of harmonl of larvs(e) The theon' of justice.

2. Please explain each theorv.

(a) The tlreorv of comin'

t\ccording to thls tlrcor\'. no iorcign iau' rvor-rld be al-lot'ed to opcratc rn anolhcr st:lte e\cept br "the comih' r-,f nn-trons"; r-e- thc leci;lrocal crlLlrtcsf s,irrcir thc rucmbcrs ol thcfarnih' of nau()ns o\\re tr) one anothcl. Irr thc old casc oi I li/tun t'.

Guyol. t\e Li.S. Suprcme Cr-rur:t deil.rcd "comtn'" as iollon's:

THEOI{IES THAT JUSTIFYTHEAPPLICATION OF TI{[ FORETGN LAI'\

"Cornirr. in thc lcgal sense. is neither: a fitatteroi absohrtc obligatron. on the r>nc irancl. nor of merecourtcst anci goocirvili. r-rpor-r tire othcr. But it is thcl'ecognlrlon rvhich one statc allos's .r.'ithrn rrs tcr-rrtor\.ro the legisiarrve, execuuve. or judrcrai acts of anothcrnarlon, having due regard both to international dr-rfi'andconvcnience, and to the rights of its orvr-r citizens, or ofotirer persons rvho are undcl the protecdon of its larvs."(1se u.s. 113 [18es])

In the above case, a firench citrzen sued an American ina French court..luclgmcn! was rcnder:ecl in favor of thc plarnuffFrcnch. rvho latcr Frled an

^ction i1r an ,\r-nerican c()Lut to cnforcc

thc judgment. 'I'he An.rcrican colrrr found that the rnal tr.r theFrcnch court \\?s latr and rmpartial br-rt even in such a casc, I irenchrribunals do not regard .\mcrican decisions r.r,rtir tlnaiin, but thclstill revict'tirc latter's clccrsions on the merits; i.e., thcv arcregarde d mcrclv as pirna.lat)e evtd,encc of plaintifl .s claim. Fience,the satne etfcct should bc givctl bv ^\n-rertcan c()llrts t() Irrenchdecisior-rs or-r "the pnncrplc c,,f reciprocitr''.

Ilorvever, rn a 1926 dccisi<lr. thc U.S. (_oru:t c_,f .\ppealscrf lierv Ycrrli rcfuscd to npplr thc abolc casc of l'li/ton y. Gurot.ln this casc. an -\rlcncan sr-rccl thc clcfendant lrrcnch citizen forrvrt.,t-rgful cicln'en- of goocls ur an ;\mcrican court. 'fhe defendantsct r\r tire clcttr-rsc that tl-re same lnfltter rvas alrcarl\'decrded urhis lavor l-r an carhcr casc Frled 1l' the -\merican in a ]irenchcoLut. The lorver court rcfusccl to givc e tfect to thc cadrel lrrcncl-rdccision or.r the theon o[ rhc o]cl Fliltor case. ltcvcrsing thc lowercourt. the L].S. Suprcme (,otrrr rulccl that surce it rvas the --\mcricanrviro hled the carlicr casc wrth a .lircnch cr-rurt s,hclcin hc lost, hccould not laterimpeach smcl juclgmcnt agair.rst irim on thc punciplcof comrq', t'hich grves conclusiveness to the Frcnch decisrcxr andbars his subseqr-rent acuou frlcd rvith an ;\merican coutt. 'I'hc basiso[ corlitv rvas srared as the persuasiveness of the foteignjudgment. not the princrple of reciprocin- as held rn the oldI Iilton case. (lohn.ran u. (ompanit: Generale -[iunta/i,tnliqur,. j42 -\. ).]8/ , U..l. Ct'urr o/' .'lppcai: o/' N.).. 2+: N)- JSl)

J'irus, nvo pflnclples havc bcen given upon rvhiclr thethcon'of courin: rests: the comitv bxsed on reciprociq, and the

THEORIESTHATJUSTIFYTHE 19APPLICATION OF THE FOREIGN LAN'

comitv based on the persuasiveness of a foreign judgment.Note: In our 1997 Rules or-r Cir.il llroceclr.ue.

u'c still follou' tire plurcinle of recipr6crrr. hclj rn tireoici i:iiiton case because ln Sec. 4.9 of ltule 39 on tire"ctfcct oF foreign 1r_rclgnnenrs or frnal orders',. a forcrgmfinal jLrdgmcnt or <-,rder "rs presumpuve cvidcncc of aright as benvecn the parues and dreir successors in rntercstbl a subseqtrer.rr title" aud "mav be lcpeiled lrv evidenceof a rvant of jurisdicuon! want of nouce to the par:q',collusion, fraud, or clear mrstake oF law or Fact".

(b) The vested-rights theorl

Llncler tl'ris theorl', our courts enforce not tite forcignlarv ot foreign judgn-rent but thc right or rights ti-rat have bccnvested uncler such 1a\\ or iudgmenr. Rigirts once accluired undcra foteign larv or juclgment slror.rld l>e enfolccd rcgardicss ofrvhere tire suit for its enlorccrlcnt rvas filcd, 'l'l-rus. tl-re ideal ofuniformin'and predictabiln,of results rvould be achreved. II a

foreign lau'givcs a person a rrght, the mert: fact that thc larv olthe forr-un does r-rot gn'e hinr l similar or the same right is n<r

reason to refuse to help hir-n get what bclonEs ro hrr"n. J'l'rccxcepilon is, iI the forcrgn larv is against thc pubhc pol-icv of tl.refonrm. It is a pnncrple oi cvcn' civihzcd larv that vestec{ nghtsshould bc plore ctcd. 'fhis prir-rcrplc dso discor-u:ases frrrum-shoppino

An exarnple of dre applicauor.r of dr-rs drcon'rs tl, c Amcncarrcase of Grai't Cra1.8z-Ar.1-l. 82 (1 9)-+).In this case, N,Irs. Gralfiled an actior-r in Nerv lJarnpshire fol damaqes against l.rcrhnsband Nlr, Crav f<rr pctsor.ral injur:ies alleged to have beencaused to her bv the Iattcl rvhile drivrng fron.r their home in Nes'Harnpshire to N{arne u'hcre tl.re accident irappened. In N{ainc,the spouses are barrcLl florr rnrirrrrining an ;rcuon against cachother. -fhere is no sr-rch prohibitron in Ncu' I lampshire.

f'he ,\mericarr court mled tn the al>ovc cxsc that forcisntorts should be govcrned bv the /rr" loi tlelitri tommi.r.ri.,{ nghtI-ravinS becn creatccl bl thc appropr:iatc iarl thc r.cosnrtion,'iits existcncc foiiorvs cr.crr-lvhcrc. (Sce also ,\'['tJ)onuia t'. ]Ltintttt^,.71 X.11. 118: lht3u. Jarria,6, \.\. 21;L"ouik.i r'. .\'ranciard Oi,' (a.ol lt,cw \-ork. 225 N.1. 148)

CONFLICT OF LAWS CONFLICT OF LAIVS

l0 THEORIES THAT JUSTIFYTHEAPPLICATION OF THE FOREIGN LAW

(c) The theorl- of local lau'

Tl're adirerents of tiris thcon' beijeve tilnt ve rppil a

forergn lau.'not because it rs iorergn, but because our ou.'n iau'bv appiving a srmilar rule requires us to do so; hcnce. it is as if tircforeign }aw has become par:t oi our o\\n internal or domesuclaw

A good example of this theorv is Art. 16. par. 2, Neu'Crvil Code. rvhich requires us to appl-v the nattoual larv o[ tl"re

deceased in the mattet of his testate or llttcstate succession lfthe deceased rvas a Chinese aithough thc children are alreacll'Filipinos, we arc requlred to applt' Chirrese iarr,', not becausc it isthe appropnate foreign lav; but because our o\\'11 Crvil Codetells us to do so.

(d) The theory of harmony of laws

Undcr this theorl', tdentical or stmilar problems shouldbe given identical or smilxr solutious, thr.rs resulting in harmonvof laws. Certaintr,- of soiutions to titc same or srmtlar problemsare of particular rmportance in areas where tl-re Pirrties are hkeh'to think ur advance of the leeal coltsequences of therr transactiolls.For example, transactions invoiving tcal properti' should be

governed bv thc /ex iht.s,in the intercst of certaintv and uniformin'of result. Srn-riiarlr., a pers<.,n'.s civil stltus must bc governed bl a

singie lau, for thc sake oi ccrt^inn'; e.g.. u'hcthcr a pcrson is

sinqle or marricd. The apphcauon oi tl-re samc t)r sl-nilat solttuonalso ptevents the bad pracdce oF forurn-sho1'rpirlg

(e) The theorv of justice

Sincc thc puryose oiall law's. includlng (,onfhct oil-arvs.is the dispensation of justrcc. the propcr forcigt-r larv shou]d bcapplied in c>rder t() attain this objcctive. 'I'hc de fect of this theolv,hovever, rs that different pcrsons tnat'' havc c{ifierent idcas ofwirat is jusc Should we, then. lc;we tirc questlorl to t}.re diFfercntnotions oI iairness and iustrce?

CONFLICT OF LAWS THEORIESTHAT'USTIFYTHE 21APPLICATTON OF THE FOREIGN LAW

3. There being manv theories as to the proper choice of law thatshould be applied in each particular case, what, then, should beconsidered the right theorv?

In the v'ords oi tire late Jusuce Edgardo L. Paras:

"It rvill be observed that thc theories hereinaboveadverted ro do not rnutuall1' exclude onc another; perhaps,the uuth rnav be found in their ccmbinltron. Certain\., it tirewolld ls to progress in uoderstanding and judgment, it mustrecognrze this rmperative postulate: tirat sorneumes, we have roapply the proper forergn law because courtesv. conveniencc, andinternationai dury so demandl because there are vested rights rvecannot conceivably ignorel because a1i too often, tl.re foreign lawhas become part and parcel of our law; because idenucal sinrationsshould be resolved bv ider.rtical rerncdres, ilrespecdve of dre forr-rm;and fir-rall1, because to do otherr.vise mav ultimatelv result rn thcnegatlon o[ justrce." (Paras, id., p 73)

Liliclvisc, fonncr Scnator Salonga states thus:

"r x x in the absencr t l an apphcable prt;visron in thecode or statute, the various theorics shouid be examined andweighed as thev bear on a given conflicts problerrr. No singletheon' contains the whole truth, no one approach is completelvvahd. .\s one author puts it:

' The policies behind all o[ the theones havevahdin. This suggests that thcy are not entirelv exclusive.lndeed, there mav be a gain in using different theories atdifferent places to make morc rcadilv apparent thechange in pohcres deemed dominant as the situationsvAf \.."'

(Salonga, Ptivate International l-au',1995 ed., pp. 9a-95)

CONFLICT OF LAWS

r22CONFLICT OF LAWS

NATURE AND COMPOSITION, OF CONFLICTS RULES

1. Distinguish a purelv internal provision of law from a conflictsrule or a provision in conflict of laws.

A purelv internal pror,'ision of lau' governs a dourestic problem;i.e., one without a foreign elerncnt. And it authorizes, commands, orptohibits a certain act or modc of conduct. Ihe qucstron taised - whetherthe partrcuiar act or mode of couduct is allowed. cornmanded, orprol-ibited - is imrnediatelv solved.

On the other hand, a conflicts rule or pr<>r-ision of lav' is a

provision found in olrr own law rvhtch lt()verns a tactual situationpossesscd of a forcign element. It is usuallv expressed in the form of anabstract proposition that a given legal cluestron is "governed" bv the "lau'o[ a pardcular country" (rvhich rnal be an internal 1aw- or the properforeign law). to be ascertained in the manner rndicated bv the provision.

Example of an internal rule: Art. 796. All persons v,{ro arenot expresshr prohibited bv law mal tnake a will. QNew Civil Code)

Example of a conflicts rule: Art. 16, Reai proPernr as wcll as

personai propert| is subject to thc larv of thc countrv u,hcre it is situated(Art. 16, 1" par. . rd.).

CONFLICT OF LAWS

2. What are the twoThev are:

NATURE AND COMPOSITION 23OF CONFLICTS OF RULES

kinds of conflicts rules?

G) Tire one-sided rule (wirrcir indrcates when philipprneIaw will appl1').

Examples:

An. i5, New Crvil Code: Laws relaung to famrll,nghts and duties, or to the status, condition, andlegal capaciry ofpersons, are binding upon citrzensof the Philippines, even though livrng abroad.

Art. 818, id.: Two ot more persons cannot makea will jorntly, or in dre same instrument, erther fortheir reciprocal benefit or for the beneht of a thrrdpefson.

Note: The above provisions of lav' appll onlyto Fihprnos.

(b) The all-sided or multilateral rule; (which indrcateswhether to applv the local law or tire properforeign law).

Examples:Art 16, fu'st par, Neu'Civd Code: Reai properry

as well as personal propern is.subiect to the lau' ofthe countrv where it is siruated.

Art. 17, Ftst par.. rd.;'fhe foms and solemnitresof contracts, wills, and other pr-rbhc instruments shallbe gc.rverned bv tl-re iaws of the counuy m whichthev are executed.

Note: The above provrsions tell us when toappll Philippine larv or the proper foretgn la.ri

In tl.re first exampic. Phrhppine lau,is applied rfthe properq'is found rn the Philippines. Ii it is found ina lorergn countrt:, likc f apan, japanese iaw apphes.

in tire second exan-rple, ii the contract was

NATURE AND COMPOSII'IONOF CONFLICTS OF RULES

CONFLICT OF LAWS

c-\ccr-lred in the Phihpprtlcs, rts form ancl soiernnlucs aLc

gor.crned bt Phihpprnc latr Jf rt \r'rs e\ecurc.l rn rforersn countrt sav rn l'-ngland. E,ngLslr iau' u'ili appir'.

Observation: \\,'hiic,\rt. 15 of thc Neu'CivilCodc irtcrally apphes onll to lrihprnos and is actuallv a

one-sidcd rule. tirc Suprcmc (-,ourt iras gir.cn it a rnulti-iateral apphcation rn that it has l-reld that t<-rrcigncrs, intireir status and lcga) capacrt\', are gor-crned irt thetrnational law (Gibb.r x,. Gzul..:19 Phil. 29J.l\a;to r. I larden,L-6897. Nou. 29, 195Q. In other words. the na[onahtl'theon' embodied in Art. 15 of tl-re Ncrv Cir'il Code hasbeen applied bv the Suprctne Court even to pcrsonswho are citizens oIcountrics follr)wins the domici]ran'theorl. like Americans.

3, What are the parts of every conflicts rule?

Unhke a pureh' internal rulc whicll governs a purelv don'rcsticproblem without a foreign element. a conflicts rulc u'hrch indicatbsrvhethcr to apph' the internal iarv or the foreiqn iaw. hes tu'o parts s'hichare readiiy recognlzablc:

(a) the factual situation, or thc set of facts or situation pre-senting a conflicts problern because drere is a ioreign elementinvolved: and

(b) the point of contact or connecting factor, u'irich is thelaw oI tl-rc c()untr1: with rvhtch thc iactual situatit-rn is mostintin-ratcil conuected

In other words, tl-re first part states ccrtain operatrve facts, thelegai consequences <-,f wirich are determined in the second part; that is,tl.re first part raises, rvhile the second part answers or solves, a legalquestlon.

Example: Art. 1763, Neu.Cir.il Code, pror.'idrng d.rat "the lawof the country to which the goods are to be uansported shall govern thehabilirv of the common carrier for ther lo-ss, destrucuon, or deterioratron".

ln thrs provision, we have tirc pictute of a cargo shrp travelingon thc higl-r seas bnt for some reasoll ()r anorhel, the cargo clr part of itis lost, destroved. or deteriorates durns the vovagc.

NATURE AND COMPOSITIONOF CONFLICTS OF RULES

\\'hlt lau' rs t. irt' apphccl r. clete.rnurc rirc irabrhn oi the slrrPi'fl'rc Ia*, oi tire co"tn t' rvirrch thc l.st cargocs lr.c t. be rransp()rted.or tire larv of tlrerr destrnatron. not thc iarv oF tbe c()unrnr wirere the lostcargoes were ioaded, or the placc r.lf er-nbarliauon.

Another example: .\Lt. 'l 039. Ner,v (-ivil (.ocle. provrding tl.rat"capactn to succeeci rs govcmcd bl thc iarv o[ thc natron o[ thc <]ccr.-dertt". .l Ierc aqain, wc get the picttrrc ql: a. persc.rn rvlro dics, bur rvh.scheirs rnav bc cttizens of another coulrtr\,'. \\'irat Iarv should applv to dctcr-mrne wl-ro will succeed the deceased? The la*' savs it is tl-ie larv of thecountrv of rvhich thc deceased rvas a citizcn. and not the lav,, of theciuzenship of his heirs.

25

wCONFLICT OF LAWS

CHARACTERIZATIONOF CONFLICTS RULES

1. What do you understand by the concept of "characterization"in determining what law to apply in a given conflicts problem?

"Cirarzcterizauon", odrerwise hrorvn as "classification" or "quah6caflon",is tl-re ptocess c-rf assigniuq a certait't set of facts or facttral situatron to itsproper or correct iegal categort'. Evcr-r' rule rli lau'is bascd on situationsof fact. tcrual or ttlagrnccl. sincc tl-re lclislatol: tnust trl tct solve iactualsituatrons that migl-rt arise in tirc futurc, bascd crn past obscn'irtic-,n andexperience. These legal categoties nrar-bc farnilt, relations. colltracts, torls.succession, propert\:, etc. Bv charactcrtzing the legal prt.,blem. the courtor the parties invoh'ed reach thc proper solutton whether to applv thelocal law or the proper fotergn laur

2. Vhat makes the problem of "ch,aracterization" or classificationdifficult?

The difficultv in chatacteization artses from the fact tirat a

conflicts situatron or problem may be charactelized bv thc lr.r'fari differendrti'om tlre characterization of the ltx nu.tat (the Iaw of thc state \r'1th whlchthe act crr transacticur is most closch'cortnccted). 'I'bc ic.:, irnt :mrgilt regardthe problem as torl. whrle thc iex r',ttt.,,.tt rcgards tt as coutract. ()t thc /c:'

lon rntght regard the problem as cr11re, rvhiie the llcx tttu:* considers itonlv as tort. \X'hich charactenzauon should applvi'

CONFLICT OF LAWS CHARACTERIZATION OF CONFLICTS RULES 2i

Niost wrrters hoid rhat ()n the grounds oI practicai necessrtr. a'dcon\ren1el]ce. rt is the torum. or rire ,e.r 7un. that should cietermrne tireprobiem'.s char;rcrerization. uniess tl-re result would be a. clear rnjusuce.

case:Tire Suprernc Court appl-rcd thc abovc soludon n the followrng

Cibb.r u. Goul rll P. 1.. 59 Pltil. 29): A Califor.nran wifedies. I.Ier Cahfornian husband clarms the entire properues ac<1urcdbl the spor-rses during tl-reir marriage as his alone bv accrerion,follorvirrg California iaw on propertv relations of spouses.Undel Phihpprne lar.r'. irou'ever, tiris is a problem rn succession,so tl.rat ir.rheritance taxcs shoulcl be pard bl the husband as thclands in qucstion rvere located in the Phriippine, fhe SupremeCourt ireld that tire propertres l.rhenred bv the irusband rvercsubject to inhcritance ta\cs, catcgoriztng the problerrr as <lne ofthe successior-r.

3. Suppose the problem of characterization involves a determinationas to whether the matter pertains to ttsubstantivet' or to tlroceduraPt la*-.How is the problem to be solved?

'fherc is no question that all procedural matters are g<x'erned bvthe /c:t fon. 'fhus. matters of sen'rcc oi summons, ioindcr or splittinq ()fcause of acuon, hox- to appeal. peuocls of appeal. crc. are governed b,r'

the law- of tl.re forum.

llut what abollt prescrtptton of acrit-'n and dre Statute of Frauds?Are thev substantive (or.rr law considers them such, so tl-lat therr are foundin the Neu'Cn'il Code as rvell as tl.rc llules of Court) or merelv proceduraland, tlretef<-rre, governeci bt the lax.lor?

T'he modcnr trend is to considcr tire prescriptivc periods or thcStatute o[Frauds tirat ti.rc partres had in rmnd at the time the &ansactiontook place. Thcn, proceed to applv the intended iaw in its "totalitv"rncludrng its penc,ds of prescnpticin and its Statute ol ljrauds. ,\n cxcepnonrs if the subject-rnatter is propertv locatcd rn tire Philipptnes, in u'hichcase Plrilrpprne iaul being tb,c /ax .ritu.r. apphes.

Example: .\. an ljnghshman. borrowcd mone\- firrm B,another i:ngltshnlan. rr-r Engiancl. evicicnced bv a pr<>n-issotv t-rote. 1,ct

28 CHARACTENIZATION OF CONFLICTS RULES

Lrs assurne that under l-nglish lar'"', the perrod to sue ()n tire promissorr-nore 1-c four i4) r,ears. In thc Phihpoines. thc period .i prescriptrt)n rs ten(1()t vears. If acuon rs idcd rn rhe i)hihpnrnes bo'ond 4l,.or. irom rhcissuance ol tl-re note but r'"rthrn 1{) vears, sirould rve hoid the action asprescribed? \'es, because English iarr,. was evidentl_r' intended b1, the partrest() govern their transaction.

CONFLICTOF LAWS

PERSONAL LAWTHEORIES IN DETERMINING

ONE'S PERSONAL LAW

1. Vhat is a person's personal law?

A person's personai larv ntav bc de Frned as tirat whtch attacires tohj6 whcreyet l-rc rnal gol the Ia1't[at gcneralll sovcrns his status. clp^cln,conditron, fhmih'rclations, and thc c()nsc(lucnccs ol- his actuatt<;ns.

It mar, be his national lav'. tirc iarv of hrs domrcile, or ti.re iarv ofthe situs of thc event or cransaction rvhcrcin he was involvcd, dcpendurgon the theorl' applicd aud enforccd 1n thc forum.

2. Distinguish ttstatustt from ttcapacit\''tt.

"Status" "is the place of an indrvidual in society, and consists ofpersonal qualities and reiationships, more or less permanent, with whichthe state and the commurury are concerned" (?aras, supfa, p. 100). Itincludes the civil status of a Person (wh.ether he is single, married,widowed, or dlorced); his patemity and Frliauon (whether he is legtimateor iliegitimate or adopted); whether he is a minor or has reached the age

of majonty; whether he has the capacity to enter into vatious transacLions.

It also includes his name, sex, and his profession in certain cases (whetherhe is a lawyer or a doctor, or, a iudge or an appellate iustice, etc')'V . r$'

>..r.lr*Av

CONFLICT OF LAWS

CHAPTERlil

30 PERSONAL LA1A CONFLICT OF LAVVS

"Capacrn'". on the other hanci. is onlv part of one's status, andmal be delned as tire sum total oiirrs rtsitts and obirgations {Graveson.Confuct of i,au's. p.96,.

Under out Ctr,rl Cr,dc. therc .trc n\'() \:l h:rnds of clPacln:(a) juridical capacitl qrassivc capacin-) - rviricl.r ls thc litncss tc)

bc tl-rc subject of iegai rclartorts: lnd(b) capaciw to act lactr\-e cxp^crtf, - rvhtcir is thc powcr to do

acrs rvith legal eff-ects.

iArt. 37, Neu' Civil Code)

.l. babl has jr,rndical capaciq', but it l-ras no crlli1c1.\' t(' 1lct.

3. What a(e the characteristics of status?

(a) itrs cc>nferred prtncipailv bv tl.rc statc. not bl thc ndrvidual.(b) it rs a ffrattcr of pubhc or sc-,cirl iutercst.(c) Ileurg a concept of sociai ordcr^ rt cann()t casilt bc tcrr-r-ri

natcci rt thc nrcre u'il] or .lcstrc oI tl'rc partics couccttrecl.(.j It ts qcnerallv sr,rpposcd t() havc a umr-crsal character. \\then a

certain status r.s ctcated bv tl-re inq'oi ()nc c()urrtr\'. tt rs

get"reraih' rccognized iril ovel tlre rvotld.

4. State the different theories on horl' the personal laq' of anindividual is deternrined.

(a) The nationalifi'theor\, tlist, c:irllccl tirc pclsotr:rl tltc()r\:) - b\'virtue oi rl.hich the status and cePaciti o[ a persotr ts clctcr-ntnecl bl tl-rc iau'oi irts natior-ralttr',.,r hts trattonrl laui

(b) The domiciliarv theon-- bt'r,irtr.rc of rvl.rrch thc status itndcapacin- oi a 1:crson ts clctct:rntncd bv the larv of hts dornicile(also caliccl ti-re tcrr:ttorial theort).

(ci The situs or eclectic theort' - r','hich vicrvs thc particularplace or sitr-rs oi an e\:ent L)r ua1)s:rctlol) as getrcralh thc corrtrolhngIat'.

5. What theorv does the I'}hilippines follos'? What about the UnitedStates?

CONFLICTOFLAWS PERSONALIAW 3I

The united States, like other common raw countries, follows thedomiciliarv theorv.

6. Is petsonal law the 6ame as national law?

In countries that follow the nationaliry theory like the philippines,yes. In countries that follow the domiciliary or eclectic or situs theoty, no.

7. Is national law the same as the law of one's citizenship? Inother words , ate a person's nationality and citizenship the same?

"Nationality" refers to membership in a political communiq',one that is personal and more or less permanent, not temporary. A ciuzen,on the other hand, is one who owes allegiance to, and is entitled to theptotection of, the State. In the held of Confhct of Laws, however,nationality and citizenship are the same; o!, "national" and "citizen" arethe same. When our law refers to one's national law, therefore, the lawmeans the person's law of citizenship. Thus, the national law of Filiprnosis Philippine law. While the national law of an alien is the lav' of hiscitizenship (e.g., Art. 16, sec. par., referring to the "national law" of thedeceased). Once a Filipino citizen, however, is naturalized in another counrry,his national law already becomes the law of his new citizenship; the formerFilipino'citizen. once naturalized an American, is now an Amedcan citizen,and his national la'v is now Amedcan lavr

8. What are the reasons why some countries adopt the nationalitytheory, while others adopt the domiciliary theory?

Civil law countries, like the Philippines, follow the nationalitytheory. In such countdeq the nationaliry theory has been consideted justifiedon practical considetations of convenience and expediency. The peopleof these countries are considered bound by a spint of national unity, bya coffunon history and mores, so that the identity and legal position oftheir otizens are guaflnteed by the consistent application of theu nationallaws on status and familv relations wherever they may go and even whenthey migrate to other counfties. Note that manv Filipinos \r'ho havebecome naturalized in other countries still want to come back to thePhihppines and die here because they sull consider themselves as FiJ-ipinos.

The domrcihary theory, on the other hand, assumes that theattributes which make up one's status and petsonal relations are intimately\\c ftrlioN rhc rr:irronaiitr thr.<,fl.fiftfiUl t n !rr fy

r32 CONFLICT OT LAWS

connected viith the country where they have made their home. It is

adopted bv the United States and other cornrnon law countries, whosepopulations consist of peoples of different nationahucs with vannng tradi-dons, cuinrre, and ideals, and whose uniw mav be consideted achieved bvadopting the law of their domrole as the law that govems their status andfamily relations. Countries with mixed populauon brought about by themigation of foreigners to their shores need the dor'niciliary principle to

^ttdn ^ certain fusion of their populatron and to avoid the necessity of

appli4ng a different law to ptactically every case.

CONFLICTOF LAWS

THE NATIONAIITY THEORY

1. What are the weaknesses of the nationalitl theory?

It offers no solution to the problem ofa stateless person orone rvitl.r dual or rnr-rltrple citizenshrp.It is unfair to consider a person still bound bv his nationallar.r' i[ he has ]ived in another countrv Fot most of his hfeand ptacticallv all his t-1es ate with that c()untry.It rs sometimes difficult fcrr persons who rvant to changetheir national larvs (lihc re fugees from Cornmunistcountrtes) to be natr.rralized in other countrics.It is also somettmes difficult to solve problems reiating toindividuals in countries rvhe;:e most of the peopie, havingcome from other countries. have different nattonal laws orlegal svstems.

2. Since citizens and nationals are the same in Conflict of Laws,we should knowwho ate Filipino citizens considering that Philippinelaw follows them wherever they go in matters of status, legalcapaciry and family reiations. [t is, therefore, important for us toteview Philippine law on citizenship.

First of all, what are the different kinds of citizens in thePhilippines?

(")

(b)

G)

(d)

NATIONALITY THEORY CONFLICT OF LAWS

Filiprno citizens are either natural-born citizens. ornaturalized citizens

(a) Natural-born cidzens are tilose u'i-io are ciuzens tiom btth\,.rthout iravrng ro perfonn anY act to acquire oi: perttct therr PhiJrpprne

cruzensl-rtp (Art. I\i sec 2' 1987 Constirution)

Ongrnallv classificd as citizens by election verc tllose bornbefore rbe 1973 Constrtuuon of Fihptno motl-Iefs blrt of ahen fatherswlro, upon reaching the age of 27 ot wrthin a reasonable drne thereafter,electetJ Pl-iihppine citizenship. But rvith the provision of the 1987Constitutron aiso considering as natural-born citrzens "those born before

.Januarr' 17, 19i3 o[ Fihprno rnothers. u'ho elect Phrirpprne citrzenshrpupon reirchrng the agc t.,f niajorifi'". th<;sc cl'.rsstfied beforc as ctrizens b|election are now considered narural-born ciuzens.

Note: Nauve-born Fiiipino crozens are drose born in dre Philipprnes.

Natr.rral-born citizens mav not be nattve born if they rvere born abroad.

(b) Citizens bv naturalization ale those rvho were fbrmerltalcns br-rt bv iudicial. lcgislarn'c. or adnrlnrstlatl\'e Process' have becomeIrilrprno citrzcns.

Foreign women u,iro are tnauied to itiihpino husbands mav also

bc consiclered ciuzens b)' naturaiization throush said r-narriage if thel I'ravc

no disqualifications ro become Filipino citizens b),natr-rrahzation, and the

rvives and minor cirildren ol those rvl'ro had been naturairzcd as Ftliprnocrtlzens arc also considered to be naturalized citizens bl denr''ativelr aturlltzatiorr.

3. What do you understand by the principles of ius soli and fussanguinis in the law on citizenship?

tus soli - ,\ person is a ciuzen of the cout-ltl' $'here he was

born, or of thc countrt of his birtir. 'l'hus. the babt'of lirliprno Parentsbr,rt born rn tire LiS. is not onlv a Filiprno but also an ,\rnerican citizenundcr "thc princrple oi 1tt.r .roii. s'hich thc U.S. follows.

Jus sanguinr's - 'l'hrs is tire rule that u'e lollow n.r the Pi-rriippines.It is citizenship bv blood: i.c.. those rvirose lathers or lnotltets' or whosebotl.r parents atc Fiiipino ciuzens. rs a Fihprno cttizen

4. who determines whether a person is a citizen of a certain stateor countrv? For example, who detetmines whether a person is aFilipino citizen or not?

Each countr'or state has the sole porver and authonh ro determrneunder its internal or rnunrcipal ]av' ud-ro are its citrzens or nauonals. r\sprovided in Art. 2 of tire Haguc Conven[on on conflict of Nationa[n.Laws (April 12,19301:

',{nv question as to .rvhetirer a person possessesthe nationai:rv of a particular state should be detenrunedin accordance wrth thc larv of tl-:at state.',

,\rt. JV .i the i987 C.nsuturo' ,f the pbilippines clctcrmincswho are Fihpino ciuzens. No foreign lari; <_,r.no ];rw oi a torergn countr.\,can determinc who are F-ilipinos. Smilarir,, our constirutron and lawscannot deterrunc rvhc.r are, for cxar-nple, chinese ()r.r\rnerican citizens.onlv the larv of cl,rna, or the larv oi the United States. can determir-rervho are its citizens.

5. Considering that onlv the Philippines can determine who areFilipino citizens, mav the problem of the dual or multipre citizenshipof a Filipino arise in the Philippincs?

No, because as alreadl srared, as long as hc is a Filipino citizer.r,our country is nor concerned if ire iras anl, other citrzenshrp. For example.if he was born olti'riiprno parenrs. he rs a natural-b.rn citize' under therule of .ju.r vn.guini.r. He mav aiso bc a u.S. ciuzen under the prlrcipie of rzr.r.roh ii hc rvas born rn U.S. soil. But from the pc,rnr of ,,,ieu, of ourConsritutror-r and lav", he is onlr, a Filipnio ciuzen, penod.

6. What about Sec. 5, Art. IV of the 1987 Constitution providingthat "dual allegiance of citizens is inimical to the national interestand shall be dealt with by law"? Does this provision prohibitFilipinos from having dual citizenship?

No. Dual cruzenshrp cannot be avorded due to the dr,",erse larvsof the difierent countries of tire wotid as to who are their citizens anclwho are not. So, a Filipino mav have dual citizenship. as shown in euesuon5 hereof. But the concero oi the aforesard provision of the constrrutionrs not wrth dual cirizenshtp per te but u'ith naturalized cruzens oi the

CONFLICT OF LAWS NATIONALITY THEORY

36 NATIONALITYTHEORY CONFLICT OF LAWS

Philppines u'ho sull rriaintain therr allegrance to the counrries of theirongrn. Thus. tor candidates for pubhc oihcc rvrtl-r dual citrzensirrp. suffice1r tirar upon tire irhnp oi tireu-cerdircate of candiciacr. tirer, elect Phiirpprnecrtrzensl-rip to terminate their status as pcrsons rvtth ciual crrrzenshrp.considering that tirerr condrnon is thc unavordable consccluence ofconflictrng larvs of different srares. (Mertutio u. LlanTano. )07 .taR.1 5301999 t

7. Considering, then, that it is the Philippine law that determineswho are Filipino citizens and who are not, so that it does notdetermine whether a Filipino is also an American citizen or aChinese citizen, etc., when would the problem of dual citizenshipof a Filipino arise?

Such questron would arise onlv from the point of view of athird state. For example, if a gtl rvirose parents ltre Fihprnos but whorvls bo.rn and has lived all her life in Cahfornia. U.S.,\.. is appiyrng forscholarship in a French universiq', the French authoriues will regard hernot as a Fihpino but as an American. as hcr (lalift>rnia citizensirip rs then:x>re effective connecting factor in determurtng what is her citizenship,Filiprno or Californian. Tlls is appllnng the theorv of effective nationalityembodied in Art. 5 of tire Hague Convcnuon on Confhct of Natronahq'Larvs rvirici-r ptx.icles :

"Witirin a third statc, a, person having rn()re thalr onenadonaliw shall be treated as i[ ire had onlv one. \\ithout preludtceto tl-re application of its iaw tn personal matters and of anvconventions in force, a third state shail appir, the nationalitieswhich anr, such person possesses, recognize exclusivelv in rtsterritorv either ti.re natiooality of the countrv m rvhich he ishabiruallv and prurcipallv a resident, or the nationahn' of thecouritrv wrth whrch in the circumstances he appears to be in factmosdy connected."

Undoubtedlv', in the above problem, Californra is the moreeffective connecdng factor in determining whicl-r of tl-re girl's rwonationalities ot citizenships, is irer personal Ia-*.

8. In what case or cases may a Filipino have dual citizenship fromthe point of view of a third state?

CONFLICT OF LAWS NATIONALITYTHEORY 37

(a) In a case where a Frlipino (because his parents are F-ihpin.s)was born in Arnerican soil, he rs a Fihpr'o urder the rule of .jut ,iogoionwlrile lre is an ;\mericao under the ruie oi.iut toli.

(b) If a Fdrpino \r/oman marries a foreigner wirose natronai iau,aliows her to becorne a citjzen of her husband's country like China br,such marriage. she still retains her Phrltpprne citizenship under Art IV ,.i.4 of the 1987 Consutution, unless bv l-rer act or omission, she is deemedto have renounced her PhiJrppine ciuzenship. Therefore, she would beboth a FiLpino and a Cirrnese citizen, if she does nothing to renounce herPhilippine citizenship.

9. Give an example of a problem involving an alien who, ftom thepoint of view of the Philippines, has dual citizenship.

Example: A woman who is a Japanese citizen bv blood but aChinese citizen by marriage, dies, leaving some properties in our count]-vzhere she did some business before her death. Since Art. 16, pat. 2, ofthe Nerv Crvil Code, requires us to appiy her national law in determiningwho are her hehs and how much is the share of each, we should knowwhich iaw a Philipprne court should applv to her succession; whetherJapanese law or Chinese law.

10. How should the foregoing problem of dual citizenship be resolved?

W-'e should applv the "effective nationalirv" theory prevrouslvespiained. lf the deceased woman was a domiciiiary of Japan at tiretime of her death, then the Philipprne court should applv Japanese iavlli howevet, she was a domiciliarv of China at the time of her death, thecourt should apply Chinese law: This is because the law of the countryof which the deceased was both a citizen and a domiciliary at thetime of her death is considered more effectively connected to herthan het other national law. Or, stated otherwise, she was moreclosely connected to the country where, being a citizen.thereof,she and her family also made it their home. Needless to s.ay, rhatcountrv where she and her famtlv had their home was closer to her heartthan her other natronai lavz And so, in ali personal and family matters. it istl-rat law that the court should applli

11. Suppose in the above problem, the deceased woman was residingat the time of her death, not in Japan ot China, but in another or a

II NATIONALITYTHEORY CONFLICT OF LAWS

lhird countrv, like Singapore? Will the solution to the problem betltr riame?

The soluuon rvould nout be drfferent because u/e can no iongerrrv that she was.more closeiv connected to J apan or Chrr-ra, the countriesrrl wlrich she was a cirizen at the ume of her deatl-r. In this case. then, thetlomicilian theorl' comes to the rescue and will consider tl-re countr-u- o[lrcl domicile at tire time o[ her death (Singapore). So, rve sirould Ftrstapplv the nauonaliry theory by taking her rwo natronal laws (]apanese and()hinese) and applyrng them together insofar as thev are consistent andharmomous with each other. BLrt if thev are inconsistent and in conflictwiti-r each otirer. then we should alreadv apply the law of Singapore,which was her domrcile and home at the time of her deadr.

12. Suppose the person whose succession is in question before aPhilippine court is stateless. How should the court decide the case?

Srnce the person tn questron is stateless and, therefore, has nonational law, we cannot apply the nationalitv theory (Art. 16, sec. par.,New Civil Code) to hrm. ln this case, ,rEain the domrcrhaq' theorv comesto the rescue, and the court shall appll' the larv of hts domicile or if he hasnone, tire law of the country of his temp<,rrar_v domicile.

13. May a declaration of Philippine citizenship be made in apetition for naturalization?

In Comn. o/' lmmtgralion u. Carctu, L-28082..|une 28. 1974, theSupreme Court held that the court. in a petiuon for narureirzation, cannotmake a deciaration that the apphcant is alreadv a Fitliprno ctttzen for thereason that rn this jurisdiction, there can be do independent actron for thejudrcial declaration of onet ciuzensirip. Courts of jusuce exist onlv forthe settlement of jusuciabie controversres, which rmpi,v a given nght,legally demandable and enforceabie, an act or omrssion violative of saidnght, and a legal remed)' for the breach of sard right.

14. May a declaration of Philippine citizenship be made in a specialproceeding for correction of entrv under Rule 108 of the Rules ofCourt?

In a long line of cases, the Supreme Court fotmerlv heid thatsince a petiuon under Ruie 108 contemplates a summa4 ptoceedrng.

coNFLlcroFLAws NATIoNALITyTHEoRy 3e

substantiar errors like citizenship cannot be corrected tirerein. Hower-er.tlrs rulrnglras aireadr been supersecieci b'subsecluenr cases (.Toientin, t.Para.,. I I'J CR I 16..Rm. z: Lt,en,..t /.i tJ aR J ;:..R il,.*,,ir,l)rr,','.' , ,O'Ck4

/ ii, among odrers) to the effect tirat rf all pr";;;;;ffi;;r,of Rure i 0g are foto*'ed and ali persons with rntercst rn the wrong entrvhad been notified and a full biown t'al is held. ,h. p;;.:J;;il,;:longer summary but adversarial, and substantia, --*^rbJ (rL r

arreadv be corrected under Ruje i0g. I errors Lke crtizenship can

15' who are citizens of the philippines under the 19g7 constitution?

Art I\" Sec. 1 of the 19g7 constitution enumerares the ciuzensof the Phrlippines as follows:"o rhose wrro a'e ciuze's of rhe phiLppines at the time of tireadopuon of rhis ConsuruLion:(2) Those rvhose fathers ormodrers are ciuzens of trre prrihpprnes;(3) Those born beforeJanuarv Ii,1g73, olFilipino nr;;;;r.who elect phrhppine crdzenshrp upon reachrng rt," ng. .f ;;;;;,y,and(4) Those who are naruralized in accordance with law.,,

19' Yn. were citizens of the philippines under the 1923 Consdtu_uoni

Art. IIL Sectron I (l) "f the 1973 Constrtuuon provides that thefollow:ng are cirizens of the philippines:

"0) Those who ate ciuzens of the philippines ar the ume of theadoption of this Constitution;(2) T'ose w'ose fathers or motrrcrs are ciuzens of thc pl'lippines:(3) Those who ,.:,.It{OO-e cruzenshrp pursuant to the prousionsof the Constirution of 1935; and(4) Those who are naturalized in accordance wrth law.,,

17' Since the 1973 constitution considers as F'ipino citizens thosewho were such at the time of the adoption of said constitution onJanuarv 1711973, who are those refetred to in said provision?

They are those enumerated in Art. I! 1935 Consutu tron, t0 at:"(1) Those who are citizens of tire philippines ar the ume of theadopuon of the Consnrutron of rhe phihpprn.s;

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IO NATTONALITYTHEOR} CONTLICT OT LAWS

12) Those born in the Phihpprne Isiar.rds of ioreign parents who.befcire ti-rc adootron ol tiris Constitutt<-,n. ir:rd been elected to pubircoffice in the Piri)rpprnc Isiands:

(3J Tirosc u'hosc iatl.rers arc cltrzcns of rhe Phrhpptne"^:(.t) Those v,'hose mothers are citizens oi the i)hthppurcs and.

upon reaching the age of majortq', clect Phiirppine cicizenship;(5) Those who are naturaLzed rn accordance rvtth lav":"

18. Differentiate the citizenship of children born of Filipino mothersand alien fathers under the 1.935 Constitution, from those born ofFilipino mothers and alien fathers under the 19'73 and 1987 Constitutions.

V4rile the 1935 C<-,nstitutron consrders as irihprno ciuzcns at brrthor as natural-born citizer.rs only those whose fathers were Filipinos at thetime of therr brrth. rvhle those born of Filipino mothers and ahen fathersstill had to elect Philippine citizenship upon reaching maloriq' before theycould be Fihpino citrzens, tiris injusuce tc-, children of Filiprno mothers(wiro are really Fihprnos because Frliprno blood flows through their veins)was iater corrected b,v the 1973 and 1987 Constitutions, rvl-ricl.r alreadl'consider as natural-tlorn citizens those born of Fiirpino mothers, even ifthe fathers were ahens. ln other words, those born after tire effectivtq' ofthe 1973 Constitution on Januan 17,1913 of Fdrpino mothers but ofahens fathers are alread-r' IrrJrpuros at blrth rvidrout need of elecung Phdtpprnecitizenslup.

19. In the case of election of Philippine citizenship under the 1935Constitution, as of what time should the mother be a Filipino? Atthe time of her marriage to an alien, at the time of the childtsbirth, or at the time of the child's election upon reaching the ageof rnaiority?

At tl're tirne of the mother's marnage to an aiien. F-or if werequire the mother to be a Filiprno at the time of the childt birth, vervfew childlen wtll be benetrted by ths provision because the mother wouldhave alreadi' become an alien at the time of her marriage (followrng theirusband's alien citizenship) and before the child's brrth. Likewise, if werequite that tire mother should be a Irilipino citrzen at the ume of thechild's election, again ven' few children would be able to eiect, becausetheir mothets would have alreadv become a[ens when tirey got marriedto thet ahen husbands and iong before tire birth of the children.

20. where do vou find the lau'providing for election of philippinecitizenship under the 1.935 Constitution?

'fhe lau'is Commonwealth ,\ct No. 625.

2l"v/ho were Filipino citizens at the time of the adoption of theL935 Constitution on May 14, 1935?

(1) Those born in the phil_ippines wjro resrded therein on Aprili1, 1899 (the date of the ratification of the Treaw of paris b.r-".nthe U.S. and Sparn) and were Spanish subjects on rhar date, unlessthev l.rad lost therr Phihppinc citizcnshrp on Nfar. 14,1935;

(2) Nauvcs of the Spanish i)eninsula u4ro resrded ln the Philippineson,'\prrl 11, i899. and rvho did not declare tirerr intentron ofpreserving their Spanisl-r nauonalN between tl-rat date and Octobcr11, 1900 (tl're tirnc provided for doing so), unless ther.had losr rherrcitizcnshrp by lltai' 14, 1935;

(3) Narurahzed citizens of Spain who resided in the phrhppineson April 11 ,1899 and who did rrot declare thcir intentron ofpreser'ing their Spanish nationahn'between that date and ()ctober11, 1900, unless they had lost therr cirizenship bl Mar, 14. 1935;

(4) Chiidren born o[ 0). (2).and (3) subse<;uent to April 11,1899, unless tl'rer,had lost their i)hrhppine ciuzenship bv N,Iav I1.1935;

(5) Persons rvho becamc narurahzed citizens of the phrhpprnes inaccordance rvrtir the procedurc sef forrh in the Naruralization Lawsince rts enactment on March 22, '1920. unless tlrey had lost therrPhilippine ciuzenship on or before May 14. 1935;

(6) Childlen of persons embtaccd rn (5), uniess thev had losttheu'Phrhppine citrzenship on or betbre \.{av 14. 1935;

(7) Fihpino women who. after havrng iost Phijrpprne cruzenshipby matriage to forergners, irad subsequenth' become wrdou,s andregained Philrpprne cruzensirrp on or before lvlar'14. 1935

(8) Children of (7) who were stiil under 2i vears of age ar theume tlreirmothers regained Phrirppine ciuzcnshtp (Roa t: Collector,2)

CONFLICT OF LAWS NATIONALITYTHEORY 4I

I

NATIONALITYTHEORY CONFLICT OF LAWS

Phil. i2l;Talarocl' L9i GR L'5t97' Sept' 25' 195)'

(9) Forergn women who' before Mav 14' 1935' got marned to

citizens of the Phrirpp-t" *i; *nt themseives be lawfuiiv naturalzed

n the Phiiippi"tt, "t'r"l' 'nty n^i fott their Philippine citizenship on

or before MaY 14' 1935;

(10) All other persons born in the Philippures who' on the strength

of the erroneou' "ppht"oo n of the jut nli docmne in the Roa case'

were mistakenly dtd;;;'tr" tt"tts.";ltrtgino cidzens' unless they

had lost thti' titizt"li*it *t 14' 1'g3' These are citizens by tvr

iadicata. (See Tan Ch;;;"1'i' 'J' tuit'' GR L47616' Sept' 16' 1947:

Talaroc u. L5l, suPra)

Paras' suPra' PP' 122-na)

22. \(hy is the law on election of citizenship under the 1935

Constitution a transitorY law?

Because it was effective only as long as there were children of

FrLpino mothers ""d.'il;;;*'*i'o wetJdlo*ed to elect Phihppine

otizenshrp ,rpot' "^tn-g 2l years'.H:*:u"t after 1994 (21 years from

the effectivity of th" tS;iot'sutt'tion)' there vrere no longer those who

could elect Philipo-t ';;;;;' itt^ttt ^[

of them would have already

teached 2l andtl"y ti;;;;iaheady elected or did not elect at all' in

which latter case they t;;il; be aliens followrng the citizenship of

their fathers'

23. Suppose the Filipino mother of a child born under the 1935

Constitution-"" "J;;^ti;"'ata to her alien husband' what is

the citizenshiP of the child?

The child, berng ille gttrmate' followed the ciuzenship of the rnother

without need of tttJ;""' fit"te' the chrld is a Filipino from birth'

24. Vhat is the citizenship of a Filipino woman who marries a

foreigner?

(1) Prior to the 19?3 Constitution: If she acquired the nauonality

of her aiien husband' she lost her Philippine citizenship'

O'htt;;' tttt tt*"-ta a Filipino' Examples are the many

CONFLICT OFLAWS NATIONALITYTHEORY {3

Filiprnas who married Chinese husbands legally. Since underthe law of China, they followed their husbands' citizenship,they all became Chinese. That is why many Filipinas lateropted not to marry their Chrnese husbands legally, so thatthey would remain Filipinos and theit children, beingillegitimate, are also Filipinos.

Under the 1973 Constitution: A female citizen of thePhilippines who marries an alien shall retain her Philippinecitizenship, unless by her act or omission, she is deemed,under the law, to have tenounced her Philippine citizenship(Art. Ill, Sec.,2, 1973 Constiuion)

Under the 1987 Constitution: Citizens of the Philippineswho marry aliens shall tetain theu citizenship, unless by theiract or omission, they are deemed, under the laq to haverenounced their Philippine citizenship (Att. ry Sec. 4, 1987Constitution).

Note: Unlike the similar ptovision in the 1973 Constitution, theabove provision of the 1987 Constinrtion now applies to both malesand females who marry aliens.

25. What is the citizenship of an alien woman who marties aFilipino husband?

(1) In the case of Zita Ngo Burca u. Repablir, Jan.20, 1967, ir washeld that the ptopet proceeding vuherein an alien'woman married to a

Filipino can herself be declared a Filipino citizen is a naturalizationptoceeding in a court of justice, and that any such declaration by anyother office or agency is null and void.

Many Filipinos criticized said ruling because it imposed morestringent requirements on an aLien wife of a Fiiipino husband vrho ordi-nadly follows the citzenship of the latte4 than an applicant for naturalization.Fortunately, this ruling was later abandoned.

Q) h MEa Ya Lin Yao a. Comm. of Innigration,4l SCk4 292(1971), the Supreme Court reversed the Burca ruling and held that "underSec. 15 of Commonwedth Act No. 475 [the Revised Naruralization Law]*

(2)

(3)

an aiion wolrran rrnlr\,l11e a I;ihtrino. uailr'c-born oi naturirlized. bccon-tcstp.tl.iltiio a irilipino pu'idccl sl-rc is ur-rt ciiscluahired to be a cruzcn oi tirrPhrJrppu"res undcr Scc..l r;f'thc sarnc iat:" 'l'his cleciston rn cifecr ruic.ithat rt is not neccssarl ror tirc ai-rclr rvilte oi a .l-ihpr1cl hssband 16 p16;1rg 1na courr plocecding that sirc possesses ail thc guahficadons ser tortir rn Scc.2 and nonc of thc discluaiihcauons unclcl Scc. -1. both of thc Rcvrsccl\vatulahzation l,at; ]t rs cnougir ther sl'rc 1-rlolcs rhat sl'rc is nor drscluahiieclto l:c a Filipin o crilzen not necessarih- in court but even bcf<_,rc an agencrLlic rlrr' Lnrnirlratron (.orlnrissiorr.

Note also lhat an ahcn woman rnarrrcr-l t() ;tn aiien liusbandrviro (tl-re husbancl) is subsccprentlr.naturalizcd als<.r follt.,l,s the l)hrJ_rppinccitrzenship c;f her husband, pro'idecl shc d.cs 'ot suiicr f'.m a'r .frltt tlrstltrahficluutts tlrtd('r )cc. -l , 'f tlrc s;rrrrt l(t.r rscd \rrLrrairznti.,l l-,ru,'l'lirs is a casc of derivative naturalization (slr-rilar ro rhc ninor clrildrenol :r uarurali;zcd ljilipint citizcn;.

(3) i.{orvevcr:, rn the rccent case ot: l.)lumanton u. I)omtn.qa. 24(tS(.]t,\ 7+6. ti.rc Sup.rcnrc C,rurt hcicl thar tircr-e is no lau,g,r^rinn,i,lgalicns n-rarr:icd t. Fil4rrnrs thc riEht t. bc acimrttccl lnr.. nruch lcss givcnl)crlnallcllt rcsiclcrlcc irl. thc l)hLiipltitrcs. l'ltlr oi aircns rtt() rl-lc l)l-rilpprlcsrflti t]rctr ldrrrtssr,,t) 1ls lltlnllgr;lltts ts j)(,1 :l llt;tttct.,rl r.rqlit. cr.en il tht,rarc icgallr,marrieci tc, .Fihprnos. i\iarrrrrgc oi an alcn w()n-]an to a i-rusbancld<.rcs r-rrr tp.ro .fat/a *rakc her a fiiliprn' citrzcn l'd docs '.t crcuse he::fror.n her failure to dcpart lrorn thc PhrLppure Lrpon rhe expiration .f hercxteuded sta\- hcrc as an ahcn.

Note: Unliiic t|'t': i\10):tt Drt rt.;t rvhelc the aLcn lrornan marlicclto a liiliplro hr.rsba'd drd not appear r. ha'c anl drscluaLtrcation fortraturalization, the ahcn \\'onlan in thc abo'c Df umanton case re fused tc.r

It'ar c tlris coulltf\ r'r't'n aflcl tlrc cxl'rrrari,,n ,,t'ir.ir.cxterrr-lt.ri stei. ltere anditsteail g()t ll?rrrlccl to a l''ihpino. apparcnth't, avoid ircr d(,portat1on.

26. What is naturalization, and rvhat are the clifferent modes ofnaturalization?

Naturalization is tl-rc pr()ccss of conienrng on :rn airen thecitizenship of another coLultr\-, bl anr'of rhc lncans pr-or.idecl bu iar,": Itis cousidered not a rlatrcr oi rigirt bur orrc of pnvilcgc arrcl mar bccr.rjoved onh' r-rndcr thc precise conditions prcscriirccl br. l;ru:

CONFLICT OF LAWS NATIONALITYTHEORY 45

The modes of acq''rngPhilippine citizenship bv naturarizadon are:

(1) By iudicial process in accordance with Commonweaith ActNo. 475, as amended bv Repubiic Act No. 530;

(2) By legislative process; i.e., when Philippine citi.zenship isconfeted by a special act of Congress on deserving aliensi

(3) By administrative process, under Rep. Act No. 9139, otherwiseknown as "The Adminis&ative Naturalization Law of 2000",approved in 2001. Under this laq a Special Committee onNaturaiization is created, with the power to approve, deny orreject applications for naturalization irled with said Committee.Members of the Committee are the Solicitor Geneml as chairman,and the Secretary of Forergn Affairs or his representative and theNational Securiw Adviser as members.

Derivative rr"*r.ti""tion is Philippine ciuzenship conferredon: (l) the rvife of ^ ftar'xaLzed husband; (2) the mrnor children of anaturalized father; and (3) the a[en wife of a narural-born or nafuralzedcitizen, in the latter case, the mariage having taken place after the husband'snaturalization.

Be it remembered that during the penod of Martral laq Pres.Marcos issued Letter of Instruction (LOl) No. 270 providing fornaturalization by Presidential Decree. The applicants'were screened by aSpecial Committee in a summary manner, which then recommendedthose found eligible for natutalization under said LOI to Pres. Marcos,who would issue a decree declanng as naturalized Filipino citizens thoseincluded in the list recommended by the Special Committee. SaidCommittee is similar to the Committee on Naturafization created by therecently approved Rep. Act No. 9139.

27. What are the qualifications fot iudicial naturalization underSec 2, C.A. No. 475, as amended?

(1) The petitioner must not be less than 21 yeats of age on thedate of the hearing of the petition;

(2) He must have, as a rule, resided in the Phiiippines for a

continuous period of not less than ten years;

44 NATIONALITYTHEOR\ CONFLICT OF LAWS

16 NATIONALITYTHEORY CONFLICT OF LAWS

(3) He must be of good moral charactet, and believes in the

principies undetlving the Philippine Consdrution' and musthave conducted himself in a proper and irteproachablemanner during the entrre perlod of his residence in thePhilippines in his relarion rlrth the constituted governmentas well as with the cornmuniry in which he is living;

(4) He must orvn real estate in the Pliihppines worth not less thanP5,000, Plllippine currenc\'! or tnust ltave some iucrauve trade,

prr-,fession. or occupauorl:

(5) Fle rnr-rst be able to speali itnd u'r'irc l:nglish or Sparrish and

anv one of the pnncipal Philipprne languages; and

(6) He must have enrolled ]ris minor children of school age inant'ol the pubhc or pnvate schools recognizcd bv the Buteauof Prtvatc Schools where Phllippine historr'. government,and civics are taugirt or plescnbcd as part of the schoolcutrtculutn ciuriug the elltire pcliod of tire testdence lequu'edof hrm. prior to the hearing of his petiuon ti;r naturalizationas cigzcn.

28. What are the disqualifications for natutalization under C'A'No. 473, as amended?

r\ccording t() Sec. 'l of said Act, tl.re foliowrng callnot be

na turalizcd as Plrilipprne ciuzens:

(1) Persons opposed to organized goverflment or afFrliated wrth,any association or grouP o[ persons rvho uphold and teach

doctrines opposine all organizcd governments;(2) Petsons defending or tcaching the proprietl of vtoleuce,

personnl assauit or assassination for the success and pre-dotntnance of their rdeas;

(3) Pol,vgamists or believcrs in tire practicc of pol,vgam,v;

(4) Persons ccrnvicted of a crirne involving m<-rral turpirude;(5) Persons suffering frou mental alienation or incurable

contagrous disease:(6) Persons .r'l.ro, during the period of therr residence in the

Phihppines, have not rnrngled sociall,v wrth the Filiprnos' ot

rvho )rave not cvtnced a snccre destrc t<., learn aud etlbract.the custorrrs, tradrtrons. and ideals of the liilipinos:l

17) Crtrzens or sub jects of naurns rvith rviro' tl-re Phiirppir-rcs rsat war: and

(8) Ciuzcns or subjecrs of a iorergrr countn,k;ther than the UnitedStates) wlrose lat,s do not grant Frlprnos the nght tr.rbccomc naruralizcd crtizcns or subjccts thercof.

29. What are the qualifications for administrative naturalizationunder Sec. 3 of Rep. Act 9139?

(1) The applicant must bc boln in the Phdrppines and resrdingtherein srnce birth;

(2)'fhe appltcant must not bc lcss than eigl.rtecn (1ii) vear. of .gcat the ume of the Frhng of hrs/hcr petluon;

(3) The applicant must be o[good moral character and beiievcsin the underl,ving principles of thc Constitution, ancl must har,cconducted ilmself/hcrseliin a proper ancl u'rcproachablc rnannerduring his/hcr enrire pcriod r>i residence in the Phihppines in hisrelatron with the duiv constitutecl government as rvell as rvith thecommunirv in u'hrch hc/sirc rs hvrng;

(a) fhe applicant lnust have recetved hislher pnrnarv anclsecondari' educatron in anv pubirc school or private educationalinsurutior.r dulv recognized bl thc Department of F.ducation.Culture and Sports. where Phihppine irist<-rr1'. governmt:nt anricivics are taught and prescribed as part of tl'rc school curnculun-rand where enrollment is not limited to anv race or nationaLn;Pmuid.ed, that sirould he,/she havc rninor children oi school agc.he/she must have enrolled tirem in simiiar schooisl

(5) The applicant must have a known trade. business, professionor larvful occupation, from which hc/she denves incornc sufficier.rtfor ins/her suppon and if helshe ts rnamed zndf or has dependents.also drat of his/her familr': Prouiticd. howeuer. Tirat thrs shall notapplv to app[cants whc.r are coliege degree hoiders but are unableto pracltce their profession becausc the'r'are drsqualitlcd to do s,:,

bv reason of their ciuzensirrp;

CONFLICT OF LATVS NATIONALITY THEOR\

4H NATIONALITYTHEOR\ CONFI,ICT OF LAWS

(6r 'i-irc irpplrcent mLlst i)c:ible r<, rcrcl. t'rrtc and spcak Friinin<,or anr of tirc tiiaiects ol- ti-rtr l)htiipt-rtncs: enc]

irl 'I'irc applicant must hn\-e nrnqlr.i u'ltir ti)ceviuced a sinccre desrle to learn anci clnbrxcctraditrons and rdeals oi thc Fihpirro people.

30. What are the disqualifications for naturalizationAct. 9139?

f"ti-tllnos andthc customs,

under Rep.

Sec. -{ of said .\ct provrdes tl-rat tirc iollorving arc not clualifiedto bc traturaiized undcr tire same :

i1) 'I'hose opDosed to orsanlzt:d government or aiftirated rvrthanl associatron or grollp of pcrsons u'lro uphoid and tcachcloctrines opposmg all organtzeci govemlnen ts ;

(2) 'i hosc cleiendrng or teaching thc ncccssitr of or propricn' ofltoience. personal assault ol rss;rssinrtlon for the success orplcdormnance oi their ideas;

(3) Polvgamrsts <x beher.ers ln the practlcc of pr.,lvgarny;i-l) 'fhose c()nvlctecl oi crimcs rrrr-r,lr-ing, r-r'rolal turpitudcl(5) I hose strffcring irron-r r-ne rrtl1 lh.'rration or incura[rle

con tagl(r Lls tltseas cs ;

(6) 'I'hc.,sc u,irrr. dLrmg thc 1-rcnoti oi thcil rcstdcr:cc jlr thc J)lilrpprlcs.havc n<,t rmngled socialh'l.".ith i,hprnos- or rvhc.' havc notcr.iucecl ?r slncerc clcsirc to lcar:n ancl ertrbrace tirc custotrts.traditir.,ns ancl iclcals of thc iirhpinos:

(7) (-iuzcns or sr.rbjccts l<-,inationslrvith u'horn tire Phrirppines isat t,at' cilrt'nrg thc pcriocl of sLrcir r."'rr: and

(.9;Cruzens ol srrblccts ol u forcrgrr countn l.i]ose lzrs.'s clr notgrnlrt I;iill)ur()s thc flshr f() l)c nlrtluxi-rzecl ci[zens or sublcctsthercoi

31. Hou'mav Philippine citizenship be lost?

L,'r-rdcr (lon-rruout'<'altit .\cr. 6i :r: tlttcndccl l;r llcp. ,\cr, \-o.Iti(r. " 1' Ltn no crcizcrr rlr,.' iosr. l-ris ciuzcnsiriP in arl oi the foli<;s'ing

Iil naturaiizatron in n tirrcrgn coulrtr\';I\' cxprcss r('1)LLllciiltri )n oI crttzc nshilr

CONFLICT OF LAWS NATIONALITYTHEORY 49

(3) B.v subscribing to an oath of aliegiance ro supporr rheconstitution or laws of a foreign countrv upon attainrngfwentv-one vears oi age and more

(4) Bv rendering service tq or accepdng commission in, the armeciforces of a foreign country;

(5) By cancellation of the certificate of naturaiization;(6) By having been declated by competent authoriry a deserrer of

the Philippine armed forces in time of wat, unless subsequentlria plenary pardon or amnesty has been granted; and

(7) In the case of a woman, upon her marriage to a foreigner, ifby virtue of the laws in force in her husband's countrl', sheacquires his national-ity.

Note, however, that under the 7973 and 1987 Consututions, thewoman in No. (7) above retains her Philippine citizenship unless bv heract or omission, she is deemed under the law to have renounced herPhilippine citizenship.

32. How may Philippine citizenship be reacquired?

Under Sec 2 of Commonwealth Act No, 63, as amended bvRep. Act No. 106, Philippine citizenship may be reacquired as follo'*'s:

(1) By naturalization; Pnuided, that the applicant possesses noneof the drsquahfications prescribed in Sec. 2 of Act No. 2927:

(2) Bv repatriation of deserters of the Armli Nary, or Air CotpsProaidcd,That a woman who iost her citizenship bv reasorof her mariage to an alien may be tepatriated in accordancrwrth the provisions of this Act after the termination of th(mafital starus; and

(3) By direct act of the Nauonal Assembly (now Congress).

33. What is the procedure incident to reacquisition of Philippin,citizenship?

Sec. 4 of the same C.A. No. 63, as amended, provides as followr

"The procedure prescribed fot nztvrabzation undet Act292i . a

amended, shall apply to the reacquisition of Philippine citizenship b

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'O NATIONALITYTHEORY

naruralization provided for in the next preceding secrron; Prouided,Thatthe qualihcations and special qual-ificauons presctibed in Secrions threeand four of sard Act shali nor be requred; and pror,-rded ftrrther.

(1) That the applicant be at least rwenw-one vears of age andshall have resided in the Philippines at least six monrhsbefore he appiies for naturalization;

(2) That he shall have conducted himself in a proper andi::reproachable manner during the entire period of his residencein the Phiiippines, in his relations with the consrirutedgovernment as well as 'with the community in whrch he rslivrng; and

(3) That he subscribes ro an oath declating his intention torenounce absolutely and perperually all faith and alleg'ianceto the foreign authorir)', state .or sovereignw of which hewas a citizen or subject.

34. How about repatriation? How can it be effected?Rep. Act 8171 on repatiarion of Frhpino women who married

alens and natural-born Filiprno who have lost their Philippine ciuzenship,provides:

"Sec. 1. FiJipino women who have lost their Philippine ciuzenshipby mariage to al-iens and natural-born Fil-ipinos who have lost theirPhilippine citzenslup, rncluding thet minor children, on account of pohticalor economic necessity, may re-acquire Philippine citizenship throughrepaftiation in the manner provided in Section 4 of Commonwealth ActNo. 63, as amended: Provided, That the applicant is nor a:

(1) Person opposed to organized governmenr or affiliated withan association or group of persons who uphold and teachdoctrines opposing organized goverflmenr.

(2) Person defending or teaching the necessity or propriery ofviolence, personal assauit, or association for the predorninanceof their ideas;

(3) Person convi,cted of crimes involving moral turpitude; or(4) Penon suffering from mentai alienation or incurable contagious

diseases.Sec. 2. Repauiation shall be effected by taking the necessary oath

of allegiance to the Republic of the Ph-rhppines and regrstarion in thepropff civil registry and in the Bureau of lmmigration. The Bureau ofImmigration shall thereupon cancel the pertinent alien certifrcate ofreg'istration and issue the certificate of identification as Fil_ipino citizen tothe repatriated citizen."

CONFLICT OF LAWS

THE DOMICILIARY THEORY

1. What is the domiciliarv theory in Conflict of Laws?

It is the theorv wherebl tl-re starus, condition, rights, obligati<;ns,and capactrt' of a pclson are gor.-crncd l>i thc larv <-,f his domicilc or thel* cloniilii.

2. Define domicile.

It ts thc 1>lace rvherc a pcrsol'l "l-ras l'ris trlrc. Ftxed. permanenthome and pnncipal cstabhshmer-rr, and to rvhich. whencver he is absent.Iie has the intcntron oF returning" (Storr; (,onflict of l,aws, sec. 41).

It is "thc placc rvhere a pcrs()n has a settled connection for cerrainlegal purposes, either because hts hon-rc is tl.rere or bccause that is theplacer assigned to hirn bJ-lotu"' (lrrrst llcstatelnent, scc. 9).

"For ti-re exercise of crvtl rights and fulfrllmcnt o[ crvil obligatrons,thc domicile oi natr.rral persons is the place of their habttual residence."[\rt. 50, Nes' Civil (]ode).

3. Are ttdomicile" and ttresidence" the same?

" s r x rt is an established principle in Confuct of Laws that'dornicile' refels to thc reiattvelr' rrlorc perrnanent abode of a person

CONFLICT OF LAWS

CHAPTERE

.1 THEDOMICILIARYTHEOIIY CONFLICT OF LAWS

rvltrlc.'resider-rcc'apphcs t() a tctr)P()fx1-\rstlt\'()i1Persoll tu a glr-ctl Diacc"

ll',rtl, t'. C.. 1.. =0 .\CR. 1 :t8,

"Rcsidence' is used to tncLcate a pl^cc of abode' w'hethcr

pcrmanent or temPorar\'; 'domicile' denotes a fixcd' Petmanent residence

t,,.rrl-uch..r,,hen absetlt. one has thc intention of rettlrning. A man tnal'

lrave a residence in one place and a dornicilc in another. i{esidence is not

rlorntcile. but domicilc is residence coupled rvitlr lntentrou tr) fel1]aln tolnrr unl-ilruted trme. ,\ lll^n can have one dornrcilc for onct and the same

l)rlrpose at an\' tlme, but he mav l-Ia\re nufiler()us places of residence"'(litt/enq.rtr t'. Rcp.,95 Plttl. 890)

4. Distinguish "domicile" from "citizenship"'

Dorniciie in gencral speaks of one's perrnanent Place of abode'

rvhile citizer-rship or nauonality indicates ties of allegiance and lovalti A

pcrson ma\. be a crtrzen or national of one state and n domiciharl' of.;rll()rhcf. irilrpiflos rvhcr are imrnigrants abroad' hkc thc holders of grcc[

cards in the Lj.S.. ^rc

stjll Frhpino citizens. but therr dcxnicile 1s thc. coutltfv

to rvhere thev havc per-rnanentll migratcd'

5. considering that our countrv follows the nationality theorl', whv

is it still important for us to know and studv the domiciliarv theorv?

For several reasons! tratr-relt:

(1) ln some cases' our own larv nakes the hrv of the domrcile

. oi a persor-r the controllir-rq tactor in thc soluttt,lr ()i c()nfllcts cases'

Example: "'l-i'rc rev'lc'ltl()rl of a r'vill clouc bt' a Persollclutstcicthcl)hilrppincsbr.aPels()llrr,lrrldoest.t(}tllavelrisdo'micile in the Phiiippines is vahcl rvhcu donc according to tire /rr/ocz celebralionil. o1. n...,.d'.'g to thc ialv oi tl-re piacc t;f tlre testatelr,.s

domicile at the time " (Art 829. Neu' Civil Codc)

(]) Sornetimes. our larv makes either the larv of one's natlonalitv

or that of hrs domicile rs the contrt.rlhrlg thctor'

CONFLICT OF LAWS THE DOMICILIAITY THEORY

bv tlrc lau' 'f tire place in *'irich rre resicie-.. or according to thcformairtres obsen'ed rn his counrrt'. or rn conformin, wrth tiroseu4.uch ti-ris Codc prescrtbes," (-\rr. 81(r. znl

(3) In the case i,i srarelcss indn-rdu.,rls. or those r.vith dual ormultiple nationa[ties. the domtcihan' tlteor-r, runs ro tl-re rescue of thenationaliw theorr'.

(4) Dunng tl-ie earlv vears of American colonization of thcPhilippines, our Supreme Court ur solrrc cases apphed the domrcilian-tl-reor1'. like the case of the vahdiri' of a drvorce decree obtained abroad.

15) Crtrzens of countries [ke the U.S. or Great Britain, wl.ricl.rfollorv the dornicihaly dreor1,, rnav bccome rnvolved in iiiigatron in our'countr)., rvhich follorvs the nationahfi- theor\'.

(6) ,\garn, srxne great ccruntrics hkc the Ll.S. ancl Grcat Britarnfollow the domiciiiari- theor)', so that it rvould do rvell For us tr-r rnake a

comparatle studv oi thc nationalitv and dorniciharr tirconcs.

6. What law determines one's domicile, his national lau'or the lex fori

The prcvarirng rule is that thc iorurn applics its orvn concept ()idomicile in deterrruning the dornicrle of a htrsant bctbrc its courts.

7. Wrat are the different kinds of domicile?

(a) Domicile of origin: "I'hc domtcile assisnccl b)'in*'t,, a pcrs()1rat the rnoment oi his bu-th.

(b) Constructive domicile ot domicile by operation of la\\':firc domicile assigncd bv lau' to a person after birth on account ()f r]

legal drsabihn'. lilie nrinorth'. insanin. inrprrsonmeut. ctc-

(c) Domicile of choice: fhe dc-,nrrcrle of a person tui.luri.r bccausehe has his l-rorne tl-rerc and to u'htch. lvltelter.er abscnt. l-re intcnds toretLll1t.

Note: I)onricile oi ongur is acquired at birtl.r: tireleforc. it ncvercirangcs. \\'lrilc consrructtrrc domiciic ts gl'cn aftcl btrtir tci those u'ltt,1:r,-ir. clplcrtt to chr.rosc thelr c-ru,n clou"rtctlc. Iikt'tttttr,'rs. ittsattcs, etc.Example: " flre will of ln alien wlro is abroad produces

effect in the Philtppures if macle s'iti.r tirc fornralltles prcscribcd

qrr

r54 THEDOMICILIARYTHEORY CONFLICT OF LAWS

AIso. domicile of origrn never changes, fot a person ts bornonlv once. while constructive domtcile mar change from ttme to nme.like wiren the parents of a minor change dotmcile serreral nrnes.

Botb domrcile of origrn and constructive dornicile are, horvever,assrgned by laq while domicile of choice is the result of .tl-re voiuntan'will and action of the person concerned.

8. State some basic principles regarding one's domicile of choice.

(1) No person can ever be without a domicile; or! eveq/ naturalPerson must have a domicile.

(2) A person cannot l-rave fwo simultaneous domiciles.(3) A natutal person, lree (not a prisoner) and vi jui.r (one of

age and under no drsabiliw) can change his domicile at pleasure.(4) A domicile once acguired, is retarned until a new one is gained.(5) The presumption being in favor of the continuance o[ an

exisdng dornrcile, the burden of proof is on the one whoalleges that a change oF dornicile has taken place.

(6) 1b acquire a new domicile of choice, the follorving must concur':(a) residence or bodilv presence in the new- localiry;(b) an intenuon to remain there(.animu.s manendl; ar.d(c) an rntentron not to return to the former abode

(animu.r not reuerl enci)(Calie,go t' I ara, 7J Phi/. 45))

9. Give some rules in determining one's domicile of origin.

(1) if the child is legitimate, irrs domicile of origrn rs that of hrsparents at the tlme of irrs birthl if thc parents are separated, the domicileof tl-re custodial parent.

If the child is illegitimate. hrs dor-mcile of origin is that of themother at the time of his birth.

If the child is legitimated, the dormcile of his fatirer at the timeof ils binh controls, since tire eflects of legrtlnauon rctroacts to thetime o[ the child's brrth (Art. 1tJ(]. l;amrh'Code).

(2) 1'he domtcilc of c-'ngrn o[ an adopted child is tire domrcileof his real p^rents at tirc tune of his brrth, not the domicilc of the adopters

CONFLICT OF LAWS

(3) The domiciie of originrt was found.

THEDOMICILIARYTHEORY 55

o[a foundling 1s rhe countfii where

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10. Give some rules in determining one's cons*uctive domicile.

(1) N,hnors

(a) if legrtimate. the domicilc of both pareots.In case of disagreement, rhar of the father, unless

there is a judicial.order ro the contra$,. (Art. 21 1, FamilvCode).(b) If illegrtimare, the domicile of the mother (Arr. 176,

Famrly Code).' (c)In case of absence or death of either parent, rhedomiciie of the presenr parenr. Even in case of the remarriageof tire surviung parent. stili hrs/her domrcile determines theconstrucrive domicile of tl-re minor child.

(d) If the cirild is adopted, the domicile of choice ofthe adopter is the child\ construcdve dornicile.

(2) Insanes, idiots, imbeciles -Since insanes and other mentallv rncapacitated persons

cannot select their own domicile, the larv assigns their domicrleto them.

(a) If fiey arc below the age of majontli rhe rules <;nminors applr, to thern.

p) If they are of age and have guardians, thev follou,the dorrucile of ch'ice of their- guardrans. If thev ha'e no guardrans,tireir consrructive do'ucile is their domicile of cr-roice beforethev becamc insane.

(3) Married women -

(a) If fie marriage is valid;(i) The consrrucrn'e domicile of the wife is tl-re

domrcilc of borl.r spouses, ur.rless the larv alk;u,s thcwifc to have a separate domicile, tor valid andcompelling reasons (Art. 69, Jiarnilv Code).

(ii) If there rs legai separauc_,n bcrween the spouses.

56 THE DOMICILIARY THEOR} CONFLICT Of LAWS

the wife can have her os'n domrcile of choice.ril) If there ls separaucrn de talo, the wife can

aisc, have a separatc domicile (Dc ra I tna r.'. l tliurtu,.

'1:/ Phi;./ i't'

(b) If the martiage r.s voidable: Appll tirc same ruies as

when the maffiage is va[d. However, after annulment, the rvifecan freely select her own domicile of choice.

(c) If dre marriage is void: Since tirere is realv no marriagein dris case. dre.lrfe can have a domlcile separate iorm the husband.

(4) Other persons-

(a) Convict or prisoner - He is not free to have a

domicile of chotce, so iris dornicile rs the one he had possessedpnor to his incarcerauon.

(b) Soldrcrs - Since thev are compelled to follov"' thcdictates of the rnilitart', their domicile rs theu domicile beforetheir enlistment.

(c) Pubhc olficials or empiovees abroad hke diplomats,consular ofFrcials, etc. Since their stal' abroad is rn their officialand not in their personai capaciry', their domrcile is the one thevhad before thev r.vere assigned elseu'here, unlcss they voluntarilvadopt tireu place of emplovment as their permanent residence.

CONFLICT OF LAWS

CHAPTER

THE SITUS OR ECLECTIC THEORY1. Vhat is meant bv the situs or eclectic theorv?

Under the sirus or eclectic thcorl', the capaciq; condrtron, sratus.or capacin of a person is gor.erncd not necessarill bv the lau, of hrsnatronalihj or tl're lau' of his domicrlc. b't br- tl.re law of thc place (.rlzr.r)where an llnporranr clement of the probleffl occurs or rs situated.

Ilowever. thrs theo.r drsu'guishes tu'o l'ncls oipartrcrpation ofthe individual concerncd.

(a) If hrs parricipatlon is actir.c, i.e., rvhcn he does thc acrvoluntarilt', tl-re go'erning law is -the lav' of tl.rc actual situs of thcffansactron or e\.ent, -

(b) If the partrciparion is passi'e, as wi-re' the effccts of rlre actare set forth or determined by law, the go'e'ring law is the lav- of thclegal situs; i.e., the domicile of the inciividual concernecl.

Example: The marnagc benveen rwo Frhpinos rn Flongkong.

(a) Sincc the acr oi getrurq mirrried rs voiuntan. the vaLdirr.of tlrc nrarriage 1s goveutcd l>r rts acrual situs,.or the /e:r. /u,.tulebraliani.r i.\rt. 26. firsr par.. Fan-uir. (-ode)

rI THESITUSORECLECTICTHEORY CONFLICT OF LAWS

(b) \Eth respect to tire rights and obhgauons, and proPern'relauons. oi tire Filipino couple. ltowever' tl,ev are governed br'

the nauonal lau' of the spouses. w-hicir regulates or fixes sucl't

matters benveen thern; in other words' the iegal situs is the

national law of the sPouses. (Art. 8(). Familv Code)

2. If the act or transaction involves propertyr real or personal, whattheory do we apply, the nationality theory, the domiciliary theory,or the situs theory?

Art. 16, tlrst par.. of the Nerv Civil Code provldes that "realproperw as well as personal ProPert) is subiect to the law of the countrvwhere it rs siruated". Thus, if tl-re act or uansaction involves properq-'whetl-rer real or personal, the law that deterrnincs the validiry of dle tfansacdon

ts thc /ex rttar or /ex rei ilae. Flven the capacifi of tire pardes t() the uansactron

ts governed by the /er titu.t or /ex rvi .silu.r, r-rot bv tl-le lex nalionaki of the /sI

rhnuiti.

CONFLICTOF LAWS

THE PROBLEM OF THE *RENVOI''

1. What is meant by "renvoi"?

"Renvoi" is a French rvord which means "refer back" or "renrm".ln Anglo-American countries, the tenn used is "rernrssron", which meansto refer a matter for consideration or judgment.

2. rWhen does the problem of "renvoi" arise?

Everv internai or municipal hu'oix. state has two pnrts; (1) itspurelv internal or don'reshc iav rvhicl.r appLies to dornestic cases; and (2J

Its rules in Conflict of Laws rvirich tt appires to cases wlth some forergr.relernent.

Now, the problera of "renr-oi" ariscs rvhen there is doubt as tr-,

r-vhetlrer the reference bv the iex/an (the lau' of the countr-v where theproblem arises) to the foreign larv irrvolves (l) a refercnce to the internailarv of tl.re forergn larv or (2) a reference to the entlrer\ <.rf thc foreign iau,'.

inciudrng its confucts rules.

In such casc, if thc hrst statc firllorvs the nationahn, thcorr', andthe second statc fbllorvs the domtciiral\' tbcort, tiic problcrn of "rcnvoi"wiil rn<-rst probabli artsc.

CHAPTER

BII

Take the case of a (lalifrrrnia cttizen who hacl rcsidecl in

60 THEPROBLEMOTTHE"RENVOI" CONFLICT OF LAWS

counrry for 50 years andwho dies here, leaving a sizable estate. Art. 16,sec. par., of the New Civil Code provides that in testate or intestatesuccession, we should appi,v the national law of the deceased which. inthis case..is Califotnia iavr But Cal-iforniat tnternal lav'has one ruie for itsown citizens who reside there, and another rule fot its ciuzens who havetheir domiciles abroad. In the latter case, California law provides that theIaw of the domicile of its deceased citizen should apply. Thus, while ourCivil Code refers the matter to California law (the national law of thedeceased), California lavr refers the matter back to us, telling us to applythe law of the deceased's domicile, which is Philippine lavz Should thePhilippine court tasked to setde the estate of the deceased accept the"renvoi" and apply Philippine law, or insist that California intetnal lawbinding on its own citizens-residents should be applied, the same beingthe deceased's national law? This is the "tenvoi" problem.

3. Discuss why out Supreme Court accepted the ttrenvoitt in thecase of The Mattet of the Testate Estate of Edward Christensen,Adotfo Aznat and Lucy Christensen v. Helen Christensen Garcia.7 SCRA es 0e63).

The case teferred to above is the first case decided by ourSupreme Court which raised the "renvoi" problem.

The facts of the case are: The deceased Edward Christensenwas a California citizen who had resided in the Philippines for a long timeprior to his death; hence, a domiciliary of the Philippines. In his vdll, heleft almost his entire estate to Lucy, an acknowledged natural child inCalifomra, and ga'l'e a small legacy to Helen, an acknorvledged narutalchild in the Phrlippines. Under California internal law, its deceased citizenmay dispose of his estate by -ill in any manner he pleases, However,Califotnia law also provides that where its deceased citizen tesides inanother country, the law of his domicile should determine his succession.Thus, while Lucy contended that the will of the deceased should be giveneffecg follou'ing California internal law, Helen insisted that Philippine law,the law of the domicile of the deceased. should be applied, under whichshe is a forced heir and is entided to a legrtime.

The ruling: Recognizing that there \r/ere two sets of ruies underCalifornia internal iaw, one for its citizens who teside there and anotherfor its citizens 'q/ho reside in other jurisdictions, the Supreme Court heldthat if it should refer the matter to California lau'. said law will toss the

ptobiem back to us, which would result in internauonal football. Hence.we should applv Phiirpprne lau, (the law of tl:d'e c ted bl, th. .or' flrcts rure s o f c arifornia, *,iffi:tt;rfffi11i:makes acknowledged narurar children forcecr rre*s of ,rr" p*."i. ,J.t"gr*ugthem, while Carifornia ia.r'pro'ides no legitrme for such .hrr;r;;.;.

^result, Helen. the Fihpino child, rvas gir.en a legrume .

Note: The Supleme Cor-rrt,-s ruirng was obviously rntended tofavor the Filipino child. \x&at if no Filrpino .iur.n was involved, tike, fo,instance, if those Frghtrng over the estate of trre deceased wire alr Californracitizens? \ibuld our Supreme coutt have still accepted the .,renvoi,, andapplv Phihppine lau'?

4. Therl arc actually four (4) solutions that the court can adopt when_ever it is confronted with a "renvoi" probrem like the chistensencase. What are they?

(a) Wb may reiect the .,renvoi".

This means that tl-re court d.es not want the probrem r<,, be sentback to us. That is, as in the case of the testate or intesrate succession <-rfa foreigner but domrciied in our countr.l; we w<;uld simplv appl1. irisnadonal law, or the internal law of his countr\,,.

(b) W'e may accept thc ..renvoi,,.

As in the Christensen casc, our Snpreme Court accepted thc.referral or the transrnissio' of the casc back to us. so tirat instead ofapplying tire foreign rnrernal la*i prrirrpprne rarv rvas apphed. berng thclau'of the deceased'.s domicrle, as direcred bv our .wn law (Art. 16, ,"..par., Neu,. Civil Code). Thrs rs a case of single ..r.,rol or singletransmission.

(c) We mal follow the theory of desistment, or tire murual_disclaimer of jurisdiction theory.

Here, u'e refrain from applt,rng thc national Larr, of the dcccaseclforetgner, althougl.r our larv telrs us to d. s<>, if said rau, foil<;u,s tr.rcdorrucihan theo.' and drrects that wc appr' tire lau, of thc domicile ofthe deceased. So, in the end, w.e still anoh, philinnne law:

CONFLICT OF LAWS THEPROBLEMOFTHE-RENVOI" 6-!

T 62 THEPROBLEMOFTHE"RENVOI" CONFLICT OF LAWS

(d) \Ve ma1: applv the foreign court theorv.Under this tireor\i v'e would simpll do u.hat the tbreien courr rvould

do if confronted wrth the same case. So ti.rat ri the Ca[fornia court (as inthe Christensen case) would applv Ca[fornra internal larq we would dothe same. If, however, said court would applv Phriiporne 1aw, u'e wouldfollou,' suit. The advantage of this theorv is that regardless of forum, theappiicable lav'will be the same. But rt can also result in internauonalptngpong if we do what the Califomra court would do, br.rt the Californiacourt would do what we do, erc.

5; What is meant by t'double renvoit'?

This occurs when the local court, rn adopung the foreign courttheorl', dtscovers tirat the foreign court acceprs the "renvoi." But sincethe foretgn law remits the case to Philippine law, being the iaw' oi tiredeceasedt domicile, thc f<-'reign courr lrral discover thar Philipprne larvdoes not accept tire remission (as it applies the national larv o[ thedeceased), so the foreign court, sitting as a Philipprnc courr, would stdlappl,v rts own rnternal lav": This is then rvirat our court will applr'.

6. Vhat about the theory of "transmission"? Is it the same as ttrenvoitt?

Thev are not the same becausc u'hile "renvoi" invoh'es two laws,transmrssion actually involves three larvs.

"'lransmission" is the proccss oi applvrng thc larr,' of a forergnstate thru the law of a second foreign state.

Example: A Chinese citizen domiciled in the Philippines, dies inEngiand leaving some properties there. The English court u/ill thus haveto setde said estate, and folloudng the domiciliar'' theory, it refers the'matter to the law of the domicile of the deceased, which is Philippinelavz But Philippine law, following the nationaiity theory transmis the mattetto Chinese law, the national law of the deceased. Hence, the English courtwill ultimately follow Chinese lauz

7. What is the case of Testate Estate of Amos G. Bellis o. EdwardA. Bellis,20 SCRA 3r9 (1968)? Did it involve the "renvoi" problem?

CONILICT OF LAI\| S I'HE PROBLEM OFTHE "RENVOI" 63

Suprcme (-oult hcld tirat therc \\'as rt() "rcnv6i'' 'r.blcm

irere bccausctl'rc clcccasc,ci .\r-rr's (i. Rcllis r,:rs botir a. citizer rncl a tlorniciirar.r,.i'tcras. LlS,\.

Tire facts: lJelLs. I ciuzcn unci rcsrcicnt r>i'lexas at that trn-rc oi'i-1s clcath. lcit sonrc propertlcs in tirc l)hihpuincs. lJciolc his dcath, irce\ecutecl rrvr, u'ills. onc iirllorviug'lcxas las'disPosinu oi hrs propcrtresin 'l'exas, and anoti1cr. follorving l)hilippinc iaui clisposins of his propertiesin thc l)hihppincs. Bellis hacl sevcral illcgitimatc chilcr,rcu in thc l)hrJ.ippincsbgt in l-rrs trvg rvrlls. hc dici nor sivc anvrhins to his iliegitrmare childrepl)unng thc scttlcmcur oliris cstate. lhc ilicgtmrrate chilclrcn t-,pposcci ir<-rtir

r.vills bccausc thel had irecn cleprivcd ,.'f therr: lcgrtin-rcs. and rnsisting tiratPhil-rpprnc larv sl-roulcl l:e altplied.'l'hcrc arc uo cc>urpttls<.rn' heirs r-rtrdcr'I'exas laq'. ancl -I'cxas lar',i iurtltcrrrtorc, docs tt()1 itavc conflicfs rulcsgoverning thc strcccssron rtf tts citizcns.

Helcl;'lirc illcgitlr-ratc cl.rilc'lrcn ^rc not cntiitrccl to atl' lcgittmc

bccausc unclcr'fcx',ts lnv'. rvhicl-r is thc ttattot-titl larr' r.,f tl-rc deccascd andt'hrcl-r rvc urust apph'r-rucier,\lt. 16, par. lrvo of thc Civil Coclc. thcrtc arcno compulson- ircirs and no lcgttimcs.

r\s ior thc oppositors'aLgttttrcnts that sit-rcc thc deccascdcxecnted tn'o rr'ills. ou.c t() go\-crn his cstate lr tl-rc l)irihppincs and tl-rc()thcr to g()\'crn his 'l'cxas cstatc. lt tlust havc bccn thc itrtention ol tl-rc

deceascd to i1?rvc l)irihpprne 1211' garlct-t1 his propcrtics in the Pl-rilippurcs,

thc Suprcrrc (,our:t hcld tirat i'trllorvlrg '\Iitiano r' lJt'ittto. i0 Pltil. 867. tr

provision rn a torcrg'ncr'.s u,ill to tl-rc cftcct lhrt lis pr<4rclrrcs ur thc i)hilipplnesshall be drstnbutecl in lccordancc u'rth l)l-rilqtprnc iat' :tt'tti t'tot tn '.rccordanct'

u'rtl-r hrs nlttional larv rs illcgal atrd votd.

8. All in all, in the absence of definitivc laws on the matter, howshould we resolvc the "renvoi" problem in the Plrilippines?

'lb quote thc late.|usttcc Irtlsardo 1,. Parasl

" x -s -r it is suggestccl tiraf tl-rc thcon llc aci<>ptcd rvhich'c<,,trsiclcr:l'rg tirc ctrclttnst.lltc(s ('i a gtvcl] sltuztti()n, rvill bcstrcsuit in ihtlncss, ccluitr'. anci lusticc. ir<.lr'instauce. itl thc casc oflong tin-re d<-,rnici[alres oi- tire l)irihplttucs. il urat' sccm desil'ab1c

to presulne that thcv trttcndcd to dic rvrth l)hilpprne tutcrtral lat'tallng carc of tire distribntiou of their estatc in tlrc Philipprncs;

rl fi

ilql:iI iri

lrlvri:i

:ii,i:,i;r:tiJ:,*r--i&:6'*'l{ft

-lt,il

Although the "renvoi" doctrine was invoked in this case, our

TCONFLICT OF LAWS

64 THEPROBLEMOFTHE"RENVOI"

hence. it wouid be better to accePt the "renvoi" (sirrgle rcnvoi or

srngie remission). ln ali otl-rer instances. to rejcct tire ..renvoi',

...,,irld u..rrr to be ti're tnore iestrabie soluuon " (Paras' id'' p'

217'i.

CONFLICT OF LAWS

CONFLICTS RULES ONSTATUS AND CAPACITY

1. Considering that one's status starts with the beginning of hispersonalitl', when does human personalitv begin under our law?

Art. .10, Net'Ciril C-oclc. proricles

"B.i.r'tlr cletemuncs persc,naltttr but the conccivcdchilcl shall be considcrcd bom lor all purposes that ar('iavorable to rt, prouf,ed it be bor n later u,rd.r drc cr;ndrnonsspecified tn ti.re follow'rng arttcle."

rvhrlc tire succeeding .\r:t. :t1 provides:

"Fc-rr cn'il purposes. tire fetus is considered borni[ it is alive at the tlme rt is completelv delivered fromthe' rnother's v'otnb. I-los'ever, ii thc Fetus had 'an

intra-uterinc lttc of less than scvcn months. it is n<-,t

decrncd born i[ it drcs *'ithin nvrinn'-four hr>urs aftcr'its corrrplete cle[r'crt' frorn thc ntaternal rvomb."

in rrthcr words. personaltn- reallt' begurs at c()nceplion, subjectto tl-re follorving conditions:

CHAPTER

66 CONTLTCTS RULES ON STATUS AND CAPACIT\

(a)ThcPlrrPoseisfavorabletotilefenrst'Llielirtistrvc:nasrmpie donauon or is considercd an ireu'of the larent): rnci

6) Il lr ts boru aiive uncict. .\rt' 'll of the Neu Crtrl

' (-t>dc.

In fact. Art. 5 oi PD 603 (The Child and Youth\\'eliate Code)

ls lrlore precise u'heu it provides that -

..Tl-rectr.r]personalinoitheclrildslrll]crlmmerrcefrotn

t]rennreofl-risconception,forallpr-rtptlsesfar'orablet<llrim.subiectt()thefcquirementstlf,\rtrclc.lloftlre(]ivilCode.''

Depenclingontl-reconditionsrlfitsbirtlr.thcrcale.tlrereforc'rwo ktnds oi children:

(a) ordinarv- rvithan intra utcrinc l-rtt oI at least 7 monti'rs, scr

drataslongastlrcclrildrsaliveupor-rconrpietcscparattorrfrt;mtlrcmodrer,.srvotnb, rt i.s aiteadv u'rtl-r crvil personahn-'

(b)Extraordirrary_rr,ltlranintra-ttterinclrfeoflesstiranTmonths, in u'hich case lt must livc f<rr: at least t-l hours aiter completcj.U.'"r, from ti-tc trother's r'vomb bctore it is consrtlcled born and to

havc acclutrccl civil perst-'nahti''

l)urpeses bcneficial or lavorablc to tl'rc fettls nuv be:

(a) It r-r-ral ahcadrt be givcn a stmlrlc ti()n^Bor1:

p';r,,1ln\'alreadr.beacktrtlrvlcdgedl>r.tlreihtjlcrevenbeft>rcbirtl-r (Da [cru.t t. St'attitr' i8 Phtl 866:

(c) it is alreadr'r:ntrticd to bc sr-rPpor:ted c\rcr'l $-htle still rn thc

u'cxlb of the tnother;(d) lt can alreaclv be an hcrr'

2'InConflictofLa\t,s,whatla.lr'determinesthebeginningofone's personalilv?

His personal laur if ]re rs a citizcl-r oi a coutrtrt tl-rat follor"'s tlrc

nadonahn t[.,,rt. iris natjonal las' (like thc 1)hil-rppincs) lf hc ts a citlzer.r

.,i o .nur]tr.-thlt Follorvs tl-re domicihar| the<-,r\. tl-re la\l of hrs domicile'

3. Considering that civil personality begins at conception'may the pare;rc of the unborn child recover damages from

CONFLICl OF LAWS CONFLICT OF LAWS CONFLICTS RULES ON STATUS AND CAPACITY 67

the bus company due to an injury to the fetus if a pregnantwoman who is a passenger in a bus suffers an abortion as aresult of an accident due to the negligence of the bus driver?

For pecunian'damages on account of injurr. to or the deatl.r ofthe unborn cl-rild, no. bccause the feus did not ver havc civil personalin.and an1' cause of action that accrued to tire unborn chiid was exrin-guished bv its pre-natal death. But For moral damirges suffered bv tireparents for the illegal arrest of the normal developmcnt of the fetus andon account of the drstress and anguisl.r attendant to its loss and thedisappointment of theu parental expectations, ves. (Ceiuit. C.-4., 2 SCk,188'te6/)

4. S7hen is civil personality extinguished?

According to Art. 42 of the New Civil Code, "civil personaliqvts exti.nguished by death."

Death in ti.ris article means "plrvsical death". not civil rnterdicuonwhich rs sometimes regarded as "crvil death", and rvhich merelv restricts,not extinguishes, capacity to act (Art. 38 Neu'Civil Code). A declarationof death in accordance with one's personal law (whether his national iawor the lav' of his domicile) bv a court of compctent ;unsdrction rs

consrdered valid for all purposes.

5. What is meant bv t'absence", and under what law may one bedeclared as such?

"Absence" is considered a special legal status pertaining in thePhilippine iaw to a person rvho has disappeared from his domicile, hiswhereabouts being unknown, witl.rout leaving an agent to administer hisproperrv-, or even if he had left an agent, the power conferred b)' tlt"absentee on the agent Lras expired (r\rt. 381, New Civil Code).

One's status of being absent is determined in accordance u'ithhis personal larv (u'htch mav be his national iau' or the law of his domr-cile), and jurisdiction to declare him as such also belongs to the countr\,of .x'hich he is a national or a dornici[art', as the case tnlrr' be. Hou'evcr,our own courts also har.e iurisdrction to declare an alien domicilian'in thePhdrppines as absent (ike when a Fihpino wife asks a local court todeclare her al-ien husband an absentee) under the conditions laid dou,n

T.iA CONFLICTS RULES ON STATUS AND CAPACTT\ CONFLICT OF LAWS

lrv otrr Civil Codc (-\rts. 38,t,385. and 386). (See 'laalingu. I'ernandc\. lfl)lti/. 3 1'1

6. [Jnder what conditions mav a person be declared an absenteeunder Philippine lawrand what are the legal effects of such declaration?

(a) \\'ithrn rwo (2; veats aftcl a person\ drsappearance withoutleaving an agent to administer his propertv, or having left an agent. thepower of the latter had expired, any intcrested person. relativc. or lriendmay ask tire competent court to appoint a person to represent the absenteein all that mav be necessary'(Art.381, Nerv Civtl Code).'fhe Presentspouse is, however, preferred in the apporntment when there is no legalseparatron (Art. 383).

(b) After the lapse oirwo (2) vears wlthout anl: news about theabsentee or since the receipt ol the last nelvs, and frve (5) years if theabsentee iras left an administrator of his properry'his absence mav bedeclared (Art. 38-1, id).

\Who may ask for the declatation of onets absence?

.\nv of the Follorvns:(a) The present spolrse;(b) The heirs insututed in tl.re will of the abscntee. rviro mat

present an authentjc copv of said will;(c) 'fhe intestatc heirs, if the absentec le ft no rvill;(d) Those w-ho rnay have over the propert-r' of tl.re absentee

some right subordinated to the condrtion oFhis death. (Art.385. rd.)

The procedure for dre declaratron of one's absence is found inRule 107 of tl-re Revised Rules of Court. Horvever, "thc iudrcial declarationof absence shall not take e ffect until 6 n.ronths after the publication in a

newspaper of general circulation" (ALt. 386. td.).

8. When may the absentee be presumed dead, and forwhat puqposes?

(a) For the purpose of remarriage. tire absentee mav 16 presumeddead after four (4) J'ears of absence. the present spouse having a well-founded belief that the absentee is alreadv dead (Art. {0 Familv Code).

However, in case of disappearancc whcrc t[Tere is danger of

CONFLICTOFLAWS CONFLICTS RULES ON STATUS AND CAPACITY 69

death under Art. 391 of the Nev- Civil Code. an absence of rwo (2)vears is enough (e/.).

In either case. a summarv ptoceeding fot the deciaration of thepresumptive death of the absent spouse under Arl 42 of the Fam_il1Code is necessary.

(b) For all other purposes except succession, an absence ofseven fl) years, it being unknown whether or not the absentee still lives, isnecessary (Art, 390, New Civil Code).

The procedure is found in Rule 107 of the Revised Rules ofCourt.

(c) For the purpose of succession, an absence of ten (10)vears is required, except if the absentee disappeared after the age ofseventy-five P5) yeats, in which case an absence of five (5) years is enoughto open his succession (fut. 390).

The procedute is again Rule 107 of the Revised Rules of Court.

9. In what cases would an absence of four (4) years be enough fora declaration of presumption of death because of danger of death(otherwise known as .(extraordinary absence)?

According to Art. 391, New Civil Code, the following shall bepresumed dead fot all purposes, rrcluding the division of the dstateamong the heirs:

(a) A persoa on board a vessel lost during a sea voyage, or anaeroplane which is rnissing, who had flot been heard of for four (4) yearssilce the loss of the vessel ot aeroplane;

(b) A person in the armed fotces who has taken part in war, andhas been missing for four (4) veats;

(c) A person who has been in danget of death under othercircumstances Qike earthquake, volcanic eruption, landslide, fte, dangerousexpediuons, etc.).

Rernernbeq thougta that for the pqpose of rernardage, extaordinaryabsence of two (2) .vears is enough (Art. 40, Family Code).

N CONFLICTS RULES ON STATUS AND CAPACITY

10. Vhat determines one's age of maiority in Conflict of Laws?

Since age is part of one's personal status' it is the personal law

(whether tt. .r""uo"^t law or the law of the domicile) of a person that

i.,.r-t., vrhether he has reached the age of maioritv or not'

11. What is the age of maiority undet Philippine law?

Republic Act. No' 6809, approved December 13' 1989' amended

htt.234 of ,n. f"-ity Code by reducing the age of maiority to 18 years

r"* ,ft. excepdons esiablished by existing law in special cases' But the age

of contacting marriage without parental consent has' under the same

law, remained at the age of twenry-one

Note that also under the same Rep' Act No' 6809' thc responsi-

bility of parents (if the children live in theit company) and guardians' for

tt. tort, committed by their chiidren and 'watds below 21 years of age'

hasbeenfetained.TheresultisthatsuchParentsandguardiansarestillresponsible for the damages caused by thel childten (as to patents) and

*.rd, 1", to guardians) even ifthe chdd is above 18 years ofage (the aqe

of maiority) -but

below 21 yeats of age' The defect of the provision is

with respect to guardians of minor chil&en, because if the chil&en are

already "Uor.. 18, they do not need guardians anymore' unless they are

under some other drsabiJrtY'

12. $7hat is our conflicts rules on capacity to contract?

In counuies that follow the nationality theory like the Plulippines'

the capacity to contract of a person is governed by his national law and

follovrs him vrherever he goes, while irr countries like the U'S' and Great

Britain that follow the domrcil-iary theor,v, one's capacity to conttact ls

governed by the iaw of his domicile' In other words, a petson's capacity

."o .o.,o,.. is governed by his petsonal law, whether it is the lex nationalii

of the lex danicitii.The exception in the Philippines ate contracts involving real ot

personal properry;in which cases the lex titu or hx rei sitae applies includrng

ifr. .up".i.y of the contractrrg panles (Art' 15, New Civil Code)'

For example, a Filipino who owns a' piece of property rn Fiorida'

USA, wants to donate sard property to another Filipino in the Phillppines'

Forthedonationtob.,r"lid,therespectivecapacitiesofdonoranddonee shalt be govetned by Florida law (not by PhiJippine law' which is

CONFLICT OF LAWS CONFLICT OF LAWS CONFLICTS RULES ON STATUS AND CAPACITY 7',

their national law), as well as the extrinsic and intrinsic vaiidiw of thedonation. the subject-matter of the donation being located in Fiori<ia.

Former Senator Salonga, however, mendons some criticismsleveled by U.S. and former Soviet Union authorities to the use of one,spersonal law (whether his national law or domiciliary law) to determinehis capacity to enter into business transactions with foreign elements, inthat "it would be nothing less than outright infringement of the reasonableexpectations of the contacting parties, and would result in erecting a

formidable barder to intemational trade and intercourse". For every person"who entets into a transacnon with a foreign nadonal or domrcijiarlwouldthen be compelled to gauge the capacity of the lattet by refetdng to theunfamfiar law of some foreign country". (Salonga, Private InternationaiLaw, 1995 ed., p. 250).

How' indee4 can we subject a foreigner who enters into a businesscontact with a Ffipino in the Phrlippines but who has no capacity tocontract under his personal la$/, to Philippine lavr and hold him liableunder the transaction, unless in determining his capacity to contract weapply the lex loci contractt$ which is Philippine lawl Thus, foliowing thepractice in American courts, Senator Salonga suggests that Art. 15 of theCivil Code applyrng the nationality theory be hmited to strictly familv anddomestic transactions, wh-ile the law goveming the contract should govemordinary day-to-day business contracts (id., p. 256). An example is theearly decision of the Supreme Coutt in Iuular Coat- a. Frank, I t Phil. 236(909), where said Court applied Phitippine law, being the law of theplace where the contract was to be perforrned, and not the national lawof the defend^nt, ai Illinois citizen, in determining his capacity to enterinto a contractwith the Philipptre Government to work here as a stenographer.

ti. What about the use of names and surnames, which is also partof onets status? What is the law on the matter?

Traditionally, a. person's name was not regarded as part of hisstatus because he could change his name at wiil, but our law nov'provides that "no person can change his name ot sumame u,ithout judicialauthority" (Art.376, New Civil Code), and the procedute for the changeof one's name is Rule 103 of the Revised Rules of Court. As held inREublic u. CA. and lVong, G.R No. 97906, May 21, 1992, "a change ofname is a special proceeding to establish the stalus of a person involvrnghis relation with others, that is, his legal position in, ot with regard to, the

CONTLICTOF LAWS CONFLI TS RULES ON STATUS AND CAPACITY 79N CONFLICTS RULES ON STATUS AND CAPACITY CONFLICT OF LAWS

rest of the cornmunih'."

Even ahens can ask for change oi name rn the Phiiipprnes,provided they are domrciled here. In other u'ords, the starus. of an ahenis governed bv the lex rionirillii ot the law of lus domicil e (Ong Haan Tin u.

fup., L-20997, Apil 27, 196\. But an alen whose citizenship is eitherconroverted or doubtfr:i cannot ask for a change of name under Rule1,03 (Baws u. Rep., L-23595, Feb. 20, 196q.

As for Philippine substantive law on tJre use of names andsutnames, Atts. 364 to 375, New Civil Code, iay down the ruies on theuse of sutnames by legrtimate, Iegitimated, adopted, and illegitimatechjldren; married women as well as women whose marriages had beenannulled or who are legally sepatated from their husbands; widows; andin case of identity of names and surnames between ascendants anddescendants.

All children conceived and bom outside a valid marc:nge arcconsidered by the Family Code as illeg:timate (Art. 165), whether thechild is an acknowiedged natural child or a natural child by iegal fiction as

defined by the New Cir'il Code or spurious, and they are all required touse the surname of the mother under the Family Code (Art. 176).Howevet, the new Republic Act No. 9255, amendrng Art. 176 of theFamily Code, now allows iliegitimate children to use the surname of thefather "iftheir fiIiation has been expressly recognized by the father throughthe record of birth appearing in the civil register, or when an admissionrn a public document or pdvate handwritten instrument is made by thefather" during the latter's iifetime.

Regarding Filipino women who have been divorced by theiralien husbands under fut. 26 of the Family Code, the rule on v/omenwhose marriages had been annulled should iogrcally be applied to them(See Art. 371, New Civil Code).

14. May foteigners with titles of nobility continue using said titlesin the Philippines?

The right to use a title of nobiliw depends upon the national lav'of the person concerned (X.abel, Conflict of Laws, Vol. I, p. 169). Suchpersons may condnue using thet titles of nobility in our country, but ifthey apply for nattrafization, they must renounce any hereditary tide or

order of nobility that they possess (Sec. 17, Revised Naturalization Lau)In fact, our Constiturion (the 1935,1973. and i9g7) d;.;;;,;;;;;.of rovalry or nobilin:

15. Distinguish legislative from iudiciar iurisdiction over one,sstatus.

Legislauve jurisdicdon over one's status is ihe power of hispersonal law to govern his status wherever he goes, iHt. ,rral.i"tjurisdiction is the power of the courts to decide questions or controversiesconcerning one's stanrs.

Thus, our coutts can decide cases invorving the status and capacityof foreigners brought before them, but in doing so, our courts will appl1,the personal law of the foreigner, whether it be his national I"- oi th.law of his domicile, depending on whar theory the country of hiscitizenship follows.

For example, even if the personal law of the foreigner aliowsdivorce, he cannot apply for divorce from his spouse before a Pt itipp;n.court because we do not recognize divorce and our ao,rrt, hurra ,rojutisdiction to grant divorces. However, a foreigner who applies for legalseparation in our country on a gtound available under his nauonal ilu,but not under our law, may obtain a favorable judgment from our courts,because it is his national law on legal separatio., th"t o*.o,rrts will appll:but subject to our procedural lavr.

r" CONFI"ICT OF LAWS

CHAPTERMCONFLICTS RULES ON MARRIAGE

A. MARRIAGE AS A CONTRACT

t. \Vhy do conflicts problems arise in connection with marriage as

a contract?

Such problems arise because different coulltrles or states'

depending on ,h.t'pubhc pohct', culture' or code of moralifi" have different

la.r,s in determining Ot. *Uatf oF marriage as a conuact' Consequendy'

whiie our pollcv aird concept of 't'^'riage is errrbodied in Art' 1 oF the

Famil1' Code, therc n" '''n':'iug"t ceiebiated in otl.rer countries that do

,rot .o.rforln to our idea nndlo"ttpt of marriage' vet to den-1' them

validin'vzould create ver-v serious p'otl"'rrt in rhe status of children' the

pcrsonal and propert\' t"louottt o[ tht spotlsts' the authoriry and rights

if por.rr,, towards their cirildren aod uirv uenia, trle respecrive rigirts of

succession of the spouses and the members o[ their familr" etc'

Thus, rve should know what rules or laws to applv rn such

conflicts problems.

2. \flhat is Philippine intetnal law on the formal validity ofmarriages, or the validity of marriage as a contract? '

The Familv Code presctibes essential as rvell as i:.tT^l requlsltes

fotthevalidiwofarnatriage.Theessentialrequisitesare(l)legalcapaclt},

CONFLICTOFLAWS CONFLICTSRULESOFMARRIAGE 75

of the contracting parties who must be maie and female; and (2) consentfreely given in the ptesence of the soiemmzing officer (Art. 2). While theformal requisites are:

(1) Authority of the solemnizing officer;(2) A valid marriage [cense except in the cases ptovided for in

Chaptet 2 of Tide I; and(3) A marriage ceremony which takes place with the appearance

of the contracting parties before the solemnizing officer and theirpersonal deciaration that they take each othet as husband and wife inthe presence of not less than two witnesses of legal age. (Art. 3, id.)

Like the absence of any of the essential requisites, the absence ofany formai requisite shall also rendet the mardage void ab initio, except as

stated in Article 35 Q), but an irtegul^rity i" the formal requisites shall notaffect the validity of the mariage; the party or parties tesponsible for theirregularity will however, be civilly, criminally, and administratively liable(Art.4. id.).

The above formal requisites apply also to foteigners who getmarried in the Philippines. If one or both of the parties are foreigners,the foreigner must submit a certificate of legal capacity to contractmarriage issued by the diplomatic or consular officials of hrs/her countryin the Philippines before he/she can be issued a marriage license; whilestateless persons or refugees need only to submit an affidavit stating thecircumstances showing such capacity to contact marriage (Art. 21, id.).

Considering the above formal requisites of a valid mardage in thePhilipprres, a conunon iaw marriage between Ffipinos in this country isvoid (Enriqueqa. Ennque4 8 Phil565; Eugenio u. Wb4 185 SCLA 42r.

As to common Iaw marriages of foreigners who come to thePhilippines as husband and wife, it would seem tlrat we should considerthe marriage valid if valid under their national law or the law of the placevfrere the relationship began. This is to avoid injustice to the parties as

well as thek chil&en, considering the different conceptions of marriagein foteign jurisdictions. But the mardage must not be contra bonot mores or

.universally considered incestuous.

3. What about foreign marriages of Fitipinos? Are they valid?

Under Art. 26 of the Family Code, "all martiages outside the

76 CONFLTCTS RULES OF MARRIAGE CONFLICT OI LAWS

phihpprnes in accordance w-1th the larvs in force in the countn'- rvhere thev

u,ere solemnizecl and yaiid there as -sucl'l. sirall also be valici in thts countrv.

except those prol-ribiteci undcr Arucies 35ii). ('l). (5; and (6). 36' 37 and

38"

In other words. we follo"v tire rule of ux iot'i rciebrationt.r: rf vaLdin the countn' of celebrauon. tl-re n-rarriage rs also valid tn the Pl-rihpprnes.except tir<-rse enumeratecl in sard Art. 26.

But, a for:eign marriage of Filipinos in a foreign countrv rvill stiilbe toid in tire Philippincs if:

(l) Either or botir parties did not havc the legal capacirv to gct. rrrarried 1Art. :5 {l});

2) The marriage rs irnmoral for being bigamous or poiygamou(Art. 35 {a})

(3) Consent of one partl is lackrng because of mistake as to theidentttv of tl-re other (Art. 35{5}).

(-l) Onc of tire parties was psvchologrcall,v incapacitated at thctirne oi the rnarriage to cornpll rvith the essenual maritalobligations (Art. 36);

(5) Tlie marnage is incestuous (Art. 37); ot(6) The marriagc is vord bl reason of pubhc pohcy (Art. 38).

Consular rnrrriagcs of Fiirpinos abroad are rahd. As providedin -'\rt. 1i) of thc Famih'Codc:

"Marriages between Frhprno crtjzens abroad maybe solcmrizcd bv a consul-general, consul or r,ice-consul<-rf the Republic of tire Phiirppines. Thc issuance of themarriage [ccnse and tl-re dr.rues of the iocal crvil reglstrarand of thc solemnizing oftlcer rvith regard to thecelebrirtior-r of m:rrnage shall be perfonnccl bi' saidconsr.rlar otfrcial."

4. Vhat are the conflicts rules on marriages between foreignerssolenrnized abroad?

0) \\c sn}1 applv dre r:ule of lex lo,t nlehaliolr, but not the excepdonsrn the flrst par. r.,f Art. 2(r oi tire Fami11' Code. rvhich appll onlv toFiLprnos. But universallv consiciered rncestr.xrus rnarriages are exceptedl

CONFLICTOF LAWS CONFLICTS RULES OF IUARRIAGE 7'

i.e., marriages between ascendants and descendants. and broti-rers andsisters: and marriages that are hrghlv irnmoral (bigamous or poir,,gamousrnarriages rn Chrisuan countries thar prohibrt such marnagesT.

(2) \\e proxj tnaruages., w-hile thev are nor allowed under philipprneinternal law, tlre rule in dre U.S. is tl-rat where perrnitted bv the law of tirepla.ce where the proxy particrpates in the marriage ceremoo)., thev areentitled to recognition at least insofar as the fonnal valditv of themarriage is concemed. This rule is intended to protect the wife and chii&en(Salonga. supra, p. 266).

(3) As to rnarriages on board a vessel on the high seas, since tl:ecountry whose flag the ship is flving has juusdrctron over the ship, the ruleis that compliance with the iaw of tire said countrf is recluired for tiiemarrlage to be valid. In the LI.S. where each state has irs own law- onmarriage, the lav' of tire domicrle of the ship owner governs (Salonga.supra, p. 267).

(4) IF the parties or at ieast the husband is a lvluslim (s'hosereligton allows piural malriages), it is beheved that we would recognizeup to four marriages of dre same irusband (as recognizcd by the PhrJrppineMuslim Code on Personal Laws) to protect the rights of the wives andchildren.

5. What about marriages between a Filipino and a foreigner abroad,i.e, a, mixed martiage?

If the rnarriage rs valid under the law of one of the spousesrvhiie void under the law of the other. r'c should uphold the validrn' ofthe marriage, uniess thc martiage is universallv tncestuous or liighhimmoral (the same rule as to foreigners rvho get rnarried abroad).

For exampie, a Filipina rnalnes hcr,\merican first cousu.r ui Califorrua.where the marriage is valid, If the parties are both FrJrpinos, said martiagewouid be void fot berng against public pohcv (Art. 38 (l), Farnilv Code)But since the martiage is mixed and it is valid under rhc iex loti ce/ebrationil.we should uphold the rnarriage. tc-r avoicl absurdrfi, and to do justrcc t<,

the wife and children, if anv. After all. tl.re rnarriaqe rvas perlormed in a

forergn shore and is not bv itsclf immoral or univers2ill: 1n6srgu6ss.Indeed, Art. 149 of the Famrh-Code provides that "ti-re familr,. berns thcfoundation oI the nation, is a basic social institutjon rvhich pubhc policv

7E CONFLICTSRULESOFMARRIACECONFLICT OF LAWS

cherishes and Protects "

6. What about a mixed marriage in the Philippines; i'e', one be-

tween a FiliPino and a foreigner?

It is believed that the national law of the FrLpmo -that is. PhiLppine

law- should be followed; otherwise, our public policy would be violated.

This is true both as to the extrinsic and lntrinsic validiW of the marriage.

Thus. a Frhpioo cannot marfi' his or her American frst cousin in the

PhrJrppines, sucl, marriage being prohibrted by the Familv Code' Thevcznnot also marrv without a marriage license, unless the mardage is one

exempt from such [cense.

B. MARRIAGE AS A STATUS

1. What are the two aspects of marriage as a status?

Marnage as a stalus carries with 1t mplications in rwo aspects:

the aspect of personal rights and obiigations of the spouses, and theaspect of their properry relations. As to the first asPect! the rights and

obligations of the spouses are purelv personal to them and are notordinarily interlered with bv the courts. As to the aspect of the properq''relations of the spouses, the law lavs down certain ruies and ludicialsanctions, as thef mav afFect public interest'

2. What law governs the personal relations of the spouses inConflict of Laws?

In the Philippines, personal ;:elations of the sPouses are

governed by Philippine law since we follow the nationahtv theon (Art'15, New Civil Code). Other countries that foliow the natlonali* theo{'aiso apply tl-re spouses'nadonal iar.v in determining their personal reiationsto each other. On tl,e other hand, in countries tl-rat follou'the domicrliarl,theorl', the personal reiations of the spouses are governed bv the iaw oftheit domicile.

3.Suppose the spouses are of different nationalities, what law willgovern theit personal relations, the law of the husband or the lawof the wife?

CONFLICT OF LAWS CONFLICTSRULESOFMARRIAGE 79

As a general rule, the personal reiations of the spouses arego'erned bv the national law of the husband. Reason for this is because'urhen a woman marries a foreigner, she usuallv loses het nationaliry andinstead foilows that of the husband. Another reason is that the husband isusuaily the head of the famrly, so that the husband's personal iaw governsthe personal relations of the spouses.

In the Philippines, an alien woman who manies a FiJiprno husbandipso farto becomes a Filipino citizen if she does not suffer under anydisqualification for naturalization as a a FiJipino citizen (Ahojta l-in Yao a.

Conn. of lnnigration,4l SCRA 29Q. At exception was, howevet, held inDjananton a. Domingo,240 SCLA746 (l gg5),wherein the Supreme Courtruled that "rnauiage of an alien woman to a Filipino husband does nottpto faao make her a Filipino citizen and does not excuse her from herfailure to depart from the country upon the expiration of her extendedstay hete as an alien".

As for a Filipina who maffies an alien husband, our Constitutionprovides that she "shall retain her Philippine citizenship, unless by het actor omission, she is deemed, undet the larg to have renounced her citizenship".

What law, then, should govern the personal telations of a Filipinowife, who retains her Philippine citizenship, and her alien husband?

By p*ity of reasoning with Art. 80 of the Family Code on theproperty relations of husband and wife, which provision has abandonedfut. 124 of the New Civil Code providrng that the national law of thehusband shall applv to the property telations of spouses of differentnationaiities, it will be the national iavr of the wife or Philippine law, thatwould govern the spouses'personal reiations. This change of rdle wasintended by the framers of the Family Code to protect the Filipino wrfe(because in many cases of mixed mariages, it is the rrtrfe who is theFilipino) ftom the harshness or sttictness of the personal law of the al-ien

husband, thus depriving her of her basic, fundamental rights. Many alienhusbands have divotced their Filipino u'ives under their petsonal laws.This should not, however, preclude the wives from claiming the rightsdue them under Philippine law as such wives of their alien husbands, likethe rights to support, to the custody of thet minor children, as heir ofthe husband, and in the division of the properties acquired dwing themarriage. (See Minutes of Committee meetings of Nov. 75,22 and 24,1e86)

iIilr

80 CONFLICTS RULES OF MARRIACE CONFLICT OF LAWS

4. Supposc husband and u'ife acquire a nc\r'comrnon nationalin'?Or onlv the husband changes nationalin'? Or there never was a

cornmon nationalit\. betwecn the spouses? What lar,r'will governthe personal relations of the spouses?

(1) if rhe spouscs irrvc thc sarre niluonaLitl but thev acquite a

ncrv nationalifi' bl their cornlrtoll act. thcir nerv national lau's'ill goverlttheir pcrsonal relattons.

(2) lf thc husband alonc ciraugcs iris naticirraLty n[1st ,i.t.rnarringe, tl-re larv oF thc last com!n()n natlonaiit\- of the s1;ouses rvouldgovern. to avoid preiuclice tc., the rvifc rvho r.r'or:id suf[er a cirangc in herrights .,r'rthout rnr free erercise of chciice on her part (as provided in dre)-Iague Convention oi 1905)

(3) ii the spolrscs retain thel' diifcrcnt nauonalities after therlarriage, it l'ras beet.r suggested that the national larv of both slrousesslrotrld govern (l{abcl, rd.. p. 327). Anothcr rvriter. lrorvever. offers a

bettcr sohrtion; i.c., applr' the lav' of the l.rusband rt the time of thc'nrirrriage (\\blf, Prn atc lntemational J--a*',361), 361). 1'he result, rt is clauncd,rvill rrot necessarih'bc unfair to ti-rc wife, bccause the tiren national lal' ofthe husbtnd r-nay c\relr bc urorc far-cilablc to her than hcr o*'n nxt1ol1allav: llcsiclcs. sirc shotrld aL'eaci1. knorv t'hl[ thc husbanci's nxtionxl lfl\\irvas rvhen thev got tr-rarricd.

Some excepuons to the lbove rulc rvould bc, if tl're national lar.v

of tl're irusband violatcs the pubhc polio' of the [otr-un, or the nationallarv of tl're t'rfc happens to be the larv of the forum. rntended as it is topr()tcct the wife's rigi-rts.

5. Finally, what are the personal dghts and duties of husband andwife under Philippine law?

(1) The spoLlses are obiiged to iivc togethet. observe rnutualiove, respect and fidclitr, and render urutual help andsupport (Art. 68, Fanill'Code).

(r) The spouses have the right to fix togcthcr tire far-mh' dor.mcile.Ilorvever, in case of disasreemcnr berlvecn them, thc courtshall decide.

CONFLTCT OF LAWS CONFLICTSRUL6SO[ MARRIACE

'I'hc- cotrrt nle\: cxclrrpt one sp()r,rse fro111

Living u'rth the other ti ti-rc iattcl sirould hycrbroad. or for otirer vald and compellingre^s()ns which sl-rould not be ittcornpatrble rviththe sohclarin of thc' fimih' (Art 69' rd)'

(3)Thcspollsesar:ciointlr'resllor-rsibleforti-reSuPP()ftofth('famrlr- (Art. 70' id )

(a) The 1nnnagc1l1ent of the ht>usehold shnll bc the ttght rnd

dun of both sPouses ('\rt' ?f id')'

(5) \\'hen one of the spouscs neglccts his or i-rcr cllrtles tti thc

cr-,niugal ulltoll or .a"rt'"'t"' acts u'hich tend tc' brrng dal'rt{er'

dishonor. c-rr: ir-riui'r' to tilc otilcr {)r: tlle fatl'Iih" t}re aggr:tevecl

spouse n'rav appll' to the colut for reLef (Art 72' id )'

((r) Erther sPouse mav excrosc anr lcgrtin.rate profcssion' occuPxuoo'

busrness, or actrvitt'' wlthout the consent of the otiler' lhclatter nlav ob;ect only orl valicl' serit>tls' atlcl moral qrouncls

('\rt. 73. id';

6. Going now to the propertv relations of husband and rvife' rvhat

are the conflicts rules on the matter?

For the saffIe feaso,l th;rt tlle persoual relatrons of tire sPouscs

are governccl br. the personal laN of the hnsband if tirev are of differcnt

natilnalties. the same rule also applies ro their ProPert\ relations' ot 1<'

tlrc prt,pern l'('gllll(' that guverrrs lhctr tllrttagc'

in tlre ?}rilrpprnes, stnce we foilorv tlre natronalin. dleorr;, tl-re proper.q.

reladons of thc spouses are, in the absence oF a marrrage settlcmcllt

bets,eeu them, governed br- Phihppine lar'"" rcgardiess of the place of- thc

celebrarion of the rnar.r.iage and ihei-esid"nce (A't. 80, Fan-rllt' Codc)

If tlri' spr,uses lre r-'f differcnt trrttonlhuts' h"rvcvct-'.rD,urnint'

thatoncoithespousesrsaliiliprno;rr-rdt1-reot,hef.andjen,sdl]1)1ri|lp-ptncialv rvill govcrn tl-rerr pr,opctn relauons -fl'ris.rvas the rntcutton ot,ttl'Commrttee that frarned tlre Familv (,ode. consrderir-rg tl-rat ln mtlst mtxed

marriages. tt is tl.re rlrire who is the Frhpino' and the Committee r'vanted tc'

r S2 CONFLICTSRULESOFMARRIAGE CONFLICTOFLAWS

prorect the v'rfe in such a mauiage bv appiying Philippine iaw to the

prop"rqu relations of the spouses, whether it is the husband or the wfewho $ the Filipino ciizen. This ruie thus amends Art. 124 of the NewCivil Code to the effect that in mrxed mauiages between a Filipino and a

foreigner, it is the law of the husband that governs the property relations

of the spouses. (See Minutes of meetings of Civil Code RevisionCommittee, Nov. 15, 22, and 24, 1986)

The exceptions under Art. 80 of the Familv Code are:

(l) If both sPouses are aliens, in which cases the general rule inConfiict of Laws will apPly; and

(2) !7ith tespect to the extrinsic validrty of contracts affectingreal properry whether situated in the Phijippines or in a foreign counttl-,in rvhiih cases the lex situt wlll govern the formal-ities to be observed forthe contract's validrty (Art. 15, New Civil Code)

7. Suppose the husband or the wife or both change nationalities,will the rules stated in the preceding question be the same?

Yes, under the doctrine of immutability of matrimonialregime of the spouses; i.e. regardless of the change of nationahry by thehusband or the wife ot both, the originai Property regime that Prevailedat the startof their marriage prevails. The reasons for this doctrine are:

mantal peace in the spouses' ptoperty telations is more or less guaran-teed; the sPouses will not be able to preiudice creditots, who in nrmcannot leopardlz.e the interests of the spouses; and even the spouses mayprotect themselves from each oth.4 0 Rabef Conflict of l,aws, pP. 453, 354)

8. Is immutability of the property regime of the spouses the sameas immutablity of the law governing said regime?

No, forwhile a subsequent change of nationality by the husbandor the wife or both does not change or affect the otiginal ProPertyregime, the law that creates and governs said regime may change'However, maffiages solemnized before the neur law takes effect are stillgoverned by the old laur

A good example is the change that the Famil;' Code introducedin the prcperw relations of the spouses. Whiie the New Gvil Code established

the srrsre'r of conjugal partnership of gai.s benveen the spouscs. theFa'rlh'code changed the svstern or tire regrme to the absolure colnmurufi:regin-re. Thr.rs. coupies wiro get married under thc Far'ih. (,ode rvho ciiclnot enter into a marnage settiement irave a regrme of absolute commumn-of properq' benveen them. Horvc'er, rnartiages soiemruzed u'dcr thcNerv Civi] Code r.vithout marriage settlements are still governed bt, saidCivil Code; 1.e., rirc spouses still have a conjugal partnership of galnsbetween thern, subject, howeveL, to the changes introduced bv the Famril,Code in the adminisrration and disposiuon of conjugal properties. whicl.rhave retroactive effect, without prejudice ro vested rights acquiredbefore the Farnily Code took etfect (Art. 105, Familv Code).

C. ANNULMENT and DECLARATIONOF NULLITY OF MARRIAGE

1. Distinguish annulment from declaration of nulliw of marriage.

Annulment is thc renredv if thc mar:riage is r'oidable or annullable,i.e., r'alid until annullcd; rvl-ulc declaration of nullitv of marriage is thcremedy if the rnarriagc is void ab initio.

Sincc a voidable rratriaqe rs r.ahd until annr.rllecl brt a coun r,ic<xnpe tent jurisdrctron. it has ccrtain legai effects: narnelr':

(1) lt can be crxrvalidated eithcr ll' frec cohabitation or prescription.(2) Thc s^1nc propcltr rcglrn(':rs in a valid marriagc isestabiished betrveen thc spouses.(3) 'fhc chilcllcn are legidnratc if conceivcd bcfor:c thc i.c,:.. ,fannulnrcnt.(a) fhe marriagc car-urot be attackcd collatcralit,: i.c.. there mnstbe a dccree of annultlent to sct aside the nrarriage.(5) The rnarriaEe can n() longer be impugncd after the death ofthe spouses.

On the othcr l-rar-rd. sincc a void r-narnagc is absoiirtch incristcnt.

(l) It cannor bc contalld;rtctl.(2) The onlv propcrtl' rclationshrp bctwccn thc parties is a

co-ownership (see Arts. 147-1.lti, Fanril' (,ode).

CONFLICT OF LAWS CONFLICTSRULESOFMARRIAGE 83

l'i\

CONFLICT OF LAWS CONFLICT OF LAWS CONFLICTS RULES OF MARRIAGE

Tl-re above article also protects tl-re spouse who behe'cs that hisor her marriage rs null and void fr'm being crrarged rvitir brgamv if he orshe marries agar'. because tirerc would alread. be a iudicral declarauonof the nullirr- oi l-us or her marriagc before the remarriage. And thrsprovision is retroactir.c.

Tirus. a marr{age void for lack of a marriage iicense still neecls ajudicial deciaradon of nulltrl before the patries can mary again (Repubtit t.C.,4. and Cairo. 2j6 SCLL4 257: Doningo u. C.,,1., 226 SCk4 57e. khasalso been held that .uvhere a party contracts a second marriage on themere l>elief that his or her spouse is alreadv dead u'ithout fiiing n

sulnllary procceding under Art. 41 of the Farnilt' Code, the secondmarriage is bigarnous and void (lr)auarro u. Domagtoy. 259 SCk'1 124.3. Vhat are the conflicts rules on annulment and declaration ofnullity of marriage?

In Conflrct of Larvs. the grounds lor annulment of marriage,and tl.rose for the declaration of nulliry oi rnarriage, are the groundsprovided for by the lau' alleged to have been violated which, irrgeneral, ts the 1r.v /aci ce/ebralionz.r' or the law of the place where tl'rernarriage rvas celebrated, rvith certain exceptions. Tire reason is this:Considenng drat it is thc iex iorz tv/ebratiarzi that is usually applied to determinewhether a rnarriage is valid or not, it is the same law that also determinesrvhetl.rer a marriage is voidable or not, and r.vhether it is vord or not.

T'lius, if Filrpinos get married abroad, the /rx loci ce lebrationi.r rvllldetermine the Erounds for annulment (Art 2(r. Farnily Code). Forexample, two Filipinos get married in England. Let us assurne that sterihwis a gr:ound for annuLnent of rnarriage in England. The marriage of thcrwo Filipinos will be annullable on the ground of steriliw. even if sterilh,is not a grour.rd fot annuLnent undcr the Farnilv Code. This is becauseEnglrsh lawis the icx loti celebrationil.

As for declaration of nuliity of a marnage betwcen rwo Fihpinosabroad. tlre grounds are the exceptions to tlte lax loti teiebralionit rn Art. 26o[ t]re Familv Code; namelyi Articies 35 (l), (1), (5), and (6);36, 31,and38.

as to foleigners rvi.lo get married abroad, tire exceptrons to thciex ioti n/ebutiorzi would be the same as those in marrtages as a contract.r.rarnell', rnarriages th.at are highly i66o.ai (lilie bigamous and polygamous

64 CONFLICTSRULESOFMARRIAGE

(3) 'fhc chiidrcn are illesitilrratc' c\cePr chjidrcn of votcl

mrrriagcs tttlclcr' t\rts' 3(r and 53 of thc i'ar-l'rii'' (-oclc

{'1)'l'hc matriaqc mav be artackcd ciirccth'or cciliaterallr'

(5)'l.hcnauiagccal]suiibctt-t.rprtgtrcdevcnal.tcrtlrcdcatlrcltthe spouses.

Note: In Catlou l-nrr'. tl-rcrc ate oni\' nvo cxtegotles of tnrrrlagc:

loid anci valid. Void mrrriages are considercd anrlullabic' such that tl-re

rctnech' to cleciare n ,r:r^.rinf. nuli and voicl r'rnder Canon Larv is callecl

annulment. Alnttlurel-lt ilr'(lanot-r l,arv shoulci' not bc confr'rsed rvith

ar)trttlurent n the civil larv whrch applies (tlll t() void:rblc tnarriages'

A conttnon mistalie of nou-larwers and even some lau'r'ers and

iudges is to call thc rernccly to nuilifi' a uratriage undcr Art' 36 of the

Farnili 6esll (based on the psvchok>grcal incapacitt' of onc of the s1>orrses)

annui'rcnt. -lhis is rvrong, L".nrr*., t5e *rartiaqc ''der ;\rt. 36 rs r-rr-rll and

void (ti-ris ground having l;cetl talien bv thc l-alrrilr'('t>tlc [r<>n-r (-ailou

1.at9, anti thc rctnccll to dcclare thc rtlal-r:tagt 'ts such is cleclar';rur-rn c'tf

nr"rlliw of rnarriagc, not attntllntcnt.

2. If the marriage is null and void or au absolute nullity, can the

parties temarrv u'ithout going to court' since after all' themarriage does not exist at all?

No. Undcr r\rt. -{0 oi t}rc Farnth'Cr>de s'hich ls I ne\\'pro\tlslol)'"the absolute nullin, oi a prcvious mar:rirgc nril be inr'oked for purloses

o[ rcmarringe n,-t ,i't. basis soleit of a finai judgmcrlt declartng sucli

previous rrrarriagc void."

MrattlrefrarnersoftlieFanrilr'Criclervat.rte.]rr.astbrilPe|Solll1ot to assulne tirnt hts or her tnurilge is null antl void' ct'cn if such bc the

fact, but he or she musr Frrst seek a ludrcial cleclaratiou oi the nulht| oii-rrs

or her marriage before l1latr\/ing again; otherrvise' ltis or her second

rnartiage will als,, be void ^.rd "'"" bigarnous (See LV'te.gal u' Senpio-Diy'

11) Sall'|+99; I'cta.ch Consuesru u' GSIS' )7 SCk'1 J/'i) This neu'

provisionirrtheFarnilr,Codeabandc>rrsti-reolddecisionsoftlreSupreme Court to the effr:ct that rvhere a marriage is illegal or void from

its perform:irtcc. n() itrdicral declee ts n('ccssllt'\ to estrblislr rts inval-rdin'

Q)e,oph u. lv4endoia. rt Pl'il. E1j; PrcDlc r" '\rt'ian' 100 Phit' l03i)'

ijt,

$i

86 CONFLICTSRULESOFMARRIAGE CONFLICTOFLAWS

rnarriages benveen Chris t-rtn s) an d univelslllt tnces tuor-ts fiIarrlages'

Tire above rules do not' howe\'er' oPpl)' tt'consulal nrarrlage^s:

to rvhich eithet the n^u"lli'i"* ot iaw oi the domicile o[ tire parues' as

dre cir"se mart be. aPPhes'

4. What courts have iurisdiction over cases for annulment or

declaration of nullity of mariage?

Since we follow the nauonairq' theory" our courts have turisdrcl3n

to take cognizance ";;;t;*t and nulliw suits in marriage rn c^ses

rvhere the Liugants zre Filipi'nos'

Domrciharics of tlie Pirihppines can also hle sr-rcir suits ln the

Phfippirres. :ile

ln other countries' it is usuallv the courts of tire parues' dotntc

who have it"isdttt'o,' t';;; t;; t"ttt' srncetl",tt 1s the place which has the

greatest inter"" i"'ilJat-t'Jt "iooo"t of tl-re soouses Another reason

for t}-ris 'oit it u pr^<:tical one: in or<ler not to to"tptl tl.re perues' *ll:'ot'

domiciied i'-' o"" tntiio'' '" "*" to their country of nari.nalitr iust to

ftle such cases'

In the Philrppines' a Iriliplno ciflzcn or domiciliar'r'can hle a case

for annulrnen' o' attttJ'*on o[ nulliry of marrtage even if the defendant

rs a non-residt"'of tt"o.'ntrv' Such tn'"' i'-"'olit the petsonal status of

the plalnuff n'-'a to' 1o'i'Acflon can be-acqtrired over tl-re defcndant by

pubrictuon o f ^""''*Jl' CIil ! ?"' l:- tlill,,lrl ;:f#i;X*;*.. oi.o Sec 6' nerv Rule on Declarauon c

Matriage which took effect on Ma'v 15' 2t)03)'

D. ABSOLUTE DIVORCE

1' Vhat is the history of absolute divorce in the Philippines?

(1) The Siele Partidts't\e iarv in force tn the Philrpprnes during the

Spanish repme and prior to the enacment of the Cilrl Code o[ Spain'

alloved only iegal seParauon' neg 2[5olute divorce'

(2) Later' the provisions on divotce of the Civil Code of Sparn

CONFLICT OF LAWS CONFLICTSRULESOFMARRIAGE 87

werc suspended in the Phiiippines bl Gov Wevler. so that thev wercrrever eniorced rn ti.re Phil-ipoines (Benedtcto u. Dela R"tma. J Pht/. J4.l:ruti-ti.sto t'. Jann.60 Phil.a{1

(3) On N{arch 11, 1911 , a Divorce Law (Act 271Q was passed inthe Phiiippines, but it recognized onlv two grounds for absolutedivorce. adulten on the part of dre wife and concubinage on the partof the husband; and in either case, there tnust be a previous conviction.Many couples did not, therefore, apph, for dlorce under this law becausethev did not want their children to have convicts For thetr parents.

Re for:eign divorces obtained bv Filipinos duting the effectivrq'of Act 2710. the Supreme Court held thtt the foreign divorces werevaiid only if the ground tirerefor was anv of the rwo grounds allorvedunder Act 2110 (Baretto Goniak.r a. Gon3tlet, 28 Phtl' 6,]. Thus, a foretgndivorce obtarned bv a Filipino couple on the ground of desertion onthc part o[ one of thern was l-reld void, being contrall' to larv or thefundamental pohc,v of the forum (Stkat t. Canton' 67 Phi/. 207;"4rca u.

.fauier.50 OG )5)8 ,t19t4'l)

(4) During tire Japanese occupation, a law allowing absolutedivorce was passed (Executive Otder No 141) allowing divorce on10 grounds. Manv Fihprno coupies took advantage of this lau' andsought drvorce under its provisions.

(5) Executive Order No. 141 u'as eftecuve in thrs country untilOctober 23, 1944 rvhen General Douglas N{acArthur reestablished theCornmonwealth Govetnment, rvhich resulted in the repeal of Exec.Order No. 1.11 and in effect revived Act No. 2710.

(6) Act No. 2710 was later repealed by the Neu' Civil Code,wirich allows and recognized onlv legal separation. The draft of theCode had provisi<-rns on divorce, but during the discussiohs over thedraft of the Code in Congress and with the strong opposrtion of theCatholic populauon of the countr\'. absoiute divorce was eliminatedand substituted with legal separation.

(7) The Famtli'Code also does not allow absolute divorce excePt

that u'hrch rs validlv obtained abroad bv a foreigner from hrs or herFilipino spolrse capacitating hirn or her to remarry, in which case theFilipino spouse can also remarr) (Sec par. , Art. 26, Famih Code)

88 CONFLICTSRULESOFMARRIAGE CONFLICT OF LAWS

(a) The above provisron avoids the absurd situauon ofa Fiiipino as being still marned to his or her aiien spouse,aithough tire iatter is no longer marrted to the tormer. and malalreadv have another spouse.

(b) The above provision does not applv to a divorceobtained bi' a Filipino abroad from his or her Fihpino spouse,which divorce is void because our law does not allow drvorceand Filiprnos are governed bv Plr.ilippine law wherever they goas to their starus and capacity (Art. 15, New Civii Code).

(.) The above provision likewise does not applv to a

drvorce obtained by a married Frirprno urho v'ent to anothercountry', became naturalized therein. and iater drvorced his Filipinospouse after his nafuralizatron, as rt mght open the door to richFilipinos to obtain naturalizaflon in other countries wirich allowdivorce, only to be able to divorce dreir Filipino spouses.

2, May an alien who had divorced his Filipino spouse in his homecounry come back to the Philippines and ask for legal separationand separation of property against his Filipino wife on the groundof the latterts adultery?

No, because a spor-rse who accuses dre other of adultery must bean offer-rded spouse: i.e, he must sull be married ro tite latter. Hcre, thealien had no legai standing to accuse his forrner FiLpino wife of adulterybecause their malital bond had alreadv been severed r.vhen he filed theadulterv- case and could no longer be an offended spouse (Pilapil u. IbaySomera, /74 SCk4 6tJ ":/98E).

3. Compare the above Pilapil v, Ibay-Somera case with Van Dotnu. Romillo, 139 SCRA 159 (1985).

T'ire rwo cases are similan In the Van Dorn case, fuchard Upton,the American husband of Alice Reves, and thc latter, obtained a divorcein Nevada, U.S.A. Thereaftcr, Alice Reyes marrie d agarn in Nevada. Later,Upton came back to tire Phihppines and claimed that a business in thename of ALce Reves was their conjugal properfir and that the latter shouldrender an accounung and let hirn managc sard business. The SuprerneCourt held that the drvorce obtuned b1, Upron frorn ,\hce rcleased rhelatter from their marriage, and Upton had no legal standrng to sue Alice

CONFLICT OF LAWS CONFLICTSRULESOFMARRIAGE 89

as he was no longer her husband when he filed the aforementioned caseafter theit divorce.

NOTE: It is rmponant to remember the rwo foregorngcases of Pilapil u. Somera and Van Dorn a. Ronillo if similar casesanse rn the funrre under the second para$aph of Art. 26 of theFamily Code wluch recogruzes a divorce vahdly obtarned bv thealien spouse of a FiLprno citizen abroad and allows the Fdiprno tomaffy ^g:n4. What are the rules on the validity of foreign divorces obtainedby foreignets abroad?

(1) The Hague Conventron on the Recogniuon of Divorce andLegal Separation concluded on June 1, 1970 states that a foreigndivorce u'ill be recognized in the contracung states if, at the date of thehling of the proceedings:

(a) The petitioner or respondent had his or her habitualresidence in the state v'here the divorce was obtained;

(b) If both spouses were nationals of said state; or(c) Although the petrtroner was a national of another

country, he or she had his or her residence in the place where thedivorce was obtained.

(2) In the United States, a state has the du.ry to recognize a

divorce obtained in a sister state if the spouses were domiciled in thelatter st2te.

(3) A divorce obtained in a foreign countty would berecognized under the same circumstances that a divorce obtained froma sister state is grven recognitron. (Rabel. Conflict of Laws,. 1968, po.s00-s27)

(4) In dre Phfippines, if both spouses are aliens. we recognize a

decree of divorce obtained by them abroad if valid under tbeirnational law. Thus. in Recto u. Harden L - 6897, l'lou. 29, 1956, <>ur

Supreme Court held that -

"In as much as Mt. and Mrs. Harden areadmittedlv citizens of the United States, their status

#,IEas

It

CONFLICT OF LAWSLUNI.LII T (JI LAW5 CONFLIC TS RULES OF MAI{RIAGE 91

under the personal law of the husband as welr as those avaiiable u'dcrtire larv of tl-re wrtt are ali availabie grounds for granung the leealseparation. (Hague Conr.'enuon on l-esal Separation. .\rt. 8).

4. What coufts ma)' grant legal separation? Or, in what counrrvshould the case be filed?

(a) Jurisdicuon rn tl.re case of ahens is not assurned by the forumunless the nauonal larv of the parties is rviliing to recogmze its jurisdictron.

(b) In the Philipprnes, foreigners rnal ask for legal separatronhere. even if thev drd not get married in tiris countnr \X,'hat is importanris that the court has iudsdiction over both parues.

(c) Most countries assume jurisdiction over cases for legalseparation on the basis of ti"re domicile oi one of the parties or thcmatrimonial domrcile. The rationale for tiris nrle is tl-rat the larv of tl.rcdomicile of the parues is that u'ith v4ricir fhev are most intirnateh'connected (Goodnch, Conflict of Laws, 3rd ed. .395-396).

5. Is it necessarv that the cause for legal separation take place inthis country for our courts to have jurisdiction over the case?

No. There is no such requirement in the liamily Code. Again.what is important is that the court has iurisdicuon over the partics, andthat the procedural requirements of the Rules of Court are compliedwith.

It is important to empl.rasize here that Arl 99 of tl-re New CivilCode requiring that tlre peutioner must have resided in the Philipprnesif ti-re cause for legal separatlon arose in a foteign countr)', has beenexpressll'repealed by the Familv Code (,'\rt. 254) and is no longer applicable.

6. What are the grounds for legal separation under the internal larrof the Philippines?

(1) Repeated phvsical r'iolence or grosslv abusive conduct againstthe petitioner, a comlnon child. or a chrld of the peutioner:

(2) Phvsical violence or moral pressure to compel the petitionerto change religrous or politrcal afhliatron;

(3) Anempt to corrupt ot induce the petitioner. a common child,

90 CONFLTCTSRULESOFMARRIAGE

and dissolution thereof are governed bv the laws of the

United States which sanction divorce'"

E. LEGAL SEPARATION OR RELATIVE DTVORCE

1. What is legal sepatation and how does it diffet from divorce?

Absolute divorce (a vinato natinoni) dissolves the mardage and

the pames can marry again'

Legal sepamtion or relative divorce (a nerca et tlnm) is only separation

from bed "--"a

U"ta but the Parties remain married'

2. Distinguish legal sePatation from annulment of marriage'

(a) In legal separation, the marriage is not defective; in annul-

ment, the marriage is defective'

@) In legal separation' the gtounds arise after the martiage; in

annulmengthegtoundsmustexistatthetimeoforbeforethecelebrationof the marri4ge.

(c) In legal separation' the parties are still marded to each other

and cannot remarry; in annulment, the matriage is set aside and the

parties can marry again'

(d) In legal sepatation' the grounds ate those given by the

nationailaw ot the aomiclliarv law of the parties concerned, inasmuch

as the question is one of satus; annuiment, on the other hand' questions

the very existence of that starus; so that as a genelal rule' the gtounds

forannulmentarethosegivenbythelexlocicelebrationli,subiecttocertain excePtions.

3. What ate the conflcts tules on legal separation?

(a) If the parties are of the same nationality' the grounds for legal

,"p"r"aior, *. Gor. given by their personal law (whether national law

oi,h. do-t"iliary law, as the case may be)'

@) If the parties arc of different nationalities, the grounds available

92 CONFLICTSRULESOFMARIUAGE CONFLICT OF LAWS

or a chiid of the peuuoner to elrgage rn prostrtuuon, or connrvance rnsuch corruptron or inducement:

i-1) i'-inal iucigmer.rt sentencing the respondent to lflrpnsonmenrof tnore tiran (r vears, even if pardoned;

(5) Drug addiction or habituai alcoholism of the respondent(6) Contracung bv the respondent of a subsequent bigamous

marriagc. wirether tn the Phiiipprnes or abroad;(7) Lesbianrsm or hornosexualigv o[ the respondent;(8) Sexual infidehty or petversionl(9) Attempt bv tl-re respondent agaurst the life of the petitioner(10) Abandonment of peutioner bv respondent without justifiabie

cause for more than one vear.(Art. 55, Familv Code)

7. What are the defenses to legal separation under Philippineinternal law?

(1) Condonauon oF the offense or act complarned ofi(2) Consent of the aggrieved parry to the commlssion of the actot offense cornplarned of;(3) Connivance berween the parties in the coramlssion of the

offense or act constiruting the grourld for legal separatron;(4) \lhere both parues harre grven ground for legal separauon;(5) Collusion berween dre parties to obtain legal separation;(6) Prcscripuon. L\rt. 56, Famill Code)

8. Vhat is the prescriptive period for the filing of the action in thePhilippines?

\\tthrn tive (5) r'ears from the un.re of the occurrence of thecause (Art. 57, Familv Code)

9. Can the wife drop the name of the husband after the decree oflegal separation?

No. because therr are still married. And this is truc wl-rether she ist}-re guiln parn or not.

As heid tn Ltperal u. Repuhitc,6 SCl..1 J57. tl'te wrfe who has beengtanted legai separation cannot petiuon to be allowed to revert to hermarden name.

10. [f one of the parties in a legal separation case dies during thependency of the case, should rhe case be dismissed or dis itsurvive?

The case should be dismissed because it is purely a personal one.This is true even if properties are involved. po.*itiro,rt " d:.;;;;;;;

separation, there can be no effects,

11. Does the offended spouse inhsril from the guilty spouse? Vhatabout the guilty spouse, does he or she inherii nom ihe irrrro"".r,spouse?

Of course the offended spouse inherits from the gr:ilty spousebecause the parties are still martied to each other.

- As for the guilty spouse, he or she is drsqualified ftom inheritingfrom tJ-'e innocent spouse bv intestate succession, aod provisions in thewill of the latter favorable to hrm or het are revoked by operauon oflaw (Art. 63 (4), Family Code).

Hovrever, to disquali$, the guilty spouse from inheriting fromthe innocent spouse by intestate succession, the latter must Flre

" Ias" of

legal sepatation against the former. This is provided in Art. 1002, Newcivil code, stating that "in case of legal separation, if the surviving spousegave cause for the separation, he or she shalr not have any of the nghtsgranted rn the preceding articres" (meaning the right to inherit by inteJtatesuccession). But there must be a decree of legal separation as stated inQuestion L0 hereof.

CONFLICTOFLAWS CONFLICTSRULESOFMARRIAGE 93

CONFLICT OF LAWS CONFLICT OF LAWS STATUSOFCHILDREN 95

The second paragraph of r\rt. 164. hower.er, inciudcs a specialkind of leEtimate childrenl nameh'. children conceived as a result of theartiirciai inserunatron of the wife with tire sDerm of the husband ()r rh^1of a donor or both, provrded the children were born under the conciitronsprescribed rn said Arucle

(Please see cofiunenrs on chjldren bv arnficial insemrnationof this same author in her "Handbook on the Famrir.Code of the Philrpprnes". 1995 ed., pp 258-269).

As for the exceptions to Art. 165 of the Code definingrvho arc:

iliegJrtimate childr-en, tire excepticins refetred to are tlte chiidren born oivoid marriages under Art. 36 (r'oid because of tlie psvchologrcalrncapacit,v of one of the spouses) and under Art. 53 (those born of tirefust martiage of parues before sard ltrst marriage irad been ar.rnulled cx"

declared void, and who marfl' a second time without deliverrng thepresumptive legitirne of the chridren of their ltrst rnauiage).

5. Vhat are the rights of legitimate and legitimated childrenunder Philippine law?

The rights of legttimate and legrtrmated children under Art. i 7'lof the Iramrly Code are:

(1) To bear the surnames of the father and the mother, inconformity wrth the provisions of tire Civil Code on surnames;

(2) To receive support fron.r their Parents! their ascendants.and in proper cases, their brothers and sisters, in conforrniw rvitl.r thcprovisions of this Code on support; and

(3) To be entrtled to the legiume and otl-rer successionai rightsgtanted to them by the Civil Code.

Note: The legiume of eacl-r legitimate child rs half of the parent'sestate divided bv dre number of legltimate cirildren (Art. 888, Nev' Cn'ilCode); while in intestate succession. iegrumate children inherit equallv (pcr

upita) v;rthout distinction as to age or sex, and even if they spnng fromdifferent marriages (Art 979. id.)

STATUS OF CHILDREN

A. LEGITIMACY AND ILLEGITIMACY

1. What are the conflicts rules in determining legitimac;- of children?

(a) If the Parents are o[ the same nationaliq" their common

personal Ia*, whether their national 1au'or the larv of therr dornrcile' will

be applied. (I Rabei, suPra)'

lf rhe percnts are of different nattotraiiues' tl-Ie Pcrsonal lau of

the fatl-rer gol'erns (Rabel. id')'

(b) In the Phrlippines. since lve foiiow tl.re nationaLrrl theory (Art

15. Nerl Civrl Code)' th" common national lau' of the Pa(ents applies'

and tf thev have diffetent naoonalioes' the narional law of the father

goverfls.

2. Who are legitimate and illegitimate children under Philippine

internal law?

Art l(r4 of. the Familv Code defines legitimate children as

..clrildrenconcetvedorborlrdurrngt}remarriaqeoftl.reparents',;u'lrilerilegiumatechildrenaredefinedbvtl-,..,'....drngArt.165as..childrenconceived and born outside a valid, marrlage' xx x unless otherwise

provrded in this Code"

CHAPTER

96 STATUSOFCHILDRENCONFLICT OF LAWS

4. \what are rhe dghts of illegitimate children undet Philippinelaq'?

An. 176 of che Famiil Code provides that illegrumate chiidren

have the rights:(1) To use the surname of the mother;(2) To be under the parental authorifY of the mother;(3) To suppott in conformir,v \\'lth this Code;(4) To the legrtime, which is one-half of the iegtime of a

legitimate child.

Remembet that under the new Rep. Act No. 9255' illegitlmatechi-ldren may now use the sufname of the father "if ther affiliation has

been expressly recognized by the father through the recotd of birthappearing in the civil regrster orvrhen an admission in a public documentor private handwritten instfument is made by the father" dudng the iatter's

lifetime.

5. What lawgovetns the rights and duties between parent and child?

(a) If the child is legrtimate as determined bv the above rules,

either the common personal law of the parents, or the Personai law o[the father if the parents are of different nationalities, governs. (R-abel, id.).

(b) if the child is illegtdmate as determined by the above rules,

the personal law of the mother is clecisive, unless the chiid is subsequentlytecognized by the fathet, in which case the rules on legitimate childtenwill be apphed (R.abel, id.).

(c) In the Philippines, agarn since we follow the nationaiity theorl',

the law of the mother governs if the child rs illegtimate. unless the childis again tecogruzed by the father, in which case the personal law of the

fathet (whether it is the same as the mother) appiies.

6. What is meant by the doctrine of immutability of status?

This doctrine means that the status oFa child (whether legitimateor illegttimate) is not affected by a subsequent change of nationaliw ofthe parents. But the nghts and duties of patent and child, or child and

parent, would, after the parents' change of nationaliry be governed bv

the new national law of the Parents (I Rabei, id., pp. 606-607)

CONFLICT OF LAWS STATUSOFCHILDREN 97

B. LEGITIMATION

1. What are the conflicts rules on legitimation of children?

"Legrumation" is a process wherebv children vu'ho in fact werenot born rn lau'ful wedlock and should, therelore, be ordinarily consideredillegitimate children are, b,v fiction of lav' and upon compliance vrithcertain iegal requirements, regarded b)' law as "legitimate", it beingsupposed that thev were born after their parents had alreadv been validlr-married (I Manresa 550).

In Cont-lict of Lalvs, the requisites of legrtimatron are generallvconsidered those prescribed by the national lau'ofthe parents, and it thelatter have different nat-ional lav's, the national larv oF the father (I Rabel,id., p. 575). In countnes following the doraiciliarv theory, however, thepersonal law being the lau' of the domicile, the law of thc domrcile ofthe parents or. in proper cases. the law of the domrcile of the father,should govern.

2. \7hat is the internal law of the Philippines on legitimation ofchildren?

Our internal law on legfurnadon of children rs found in Arts. 177to 182 of the Familv Code.

Under Art. 177, the foliowing requisites lrrust colrcur in orderthat a child rnav be legitinrated:

(r) The chiid was cotrceived and bom outside lawful rvedlocli.(b) The parents. at the time of the child'-s conception. rvcrc

not dtsqualified by anf impediment to lnarrv each other.

Note: 'fhe addrtional requirement under Art. 270 of the NcrvCivil Code tlrat the parents must have acknowledged dre child first be-fore or after theil rnarriage, is no ionger necessary under the Familv Codc,because this Code has deletcd recogrrition ofnatural children and alreadvconFers on legrtimate and illegitimatc children their status at the momentof btth. Chtldren that fali under Art. 177 of the Family Code are, there-fore, ip.ro -farto legitimated upon the subsequent marriage of the parentsno matter how lonE a period of ume has elapsed from tl-re birtl'r of saidchildren to the time oF the matnage of tI-reir parents.

(See also comments by this samc author on Arts. 177 tr,r

98 STATUS OF CHILDI(Li\ CONFLICT OF LAWS

I82 of the Farnih' Code in her "Handbook on tl.re Famtlr,Code of thc Phiirppmes";

3. If the personal la'.r' of the parents, or of the father in propercases, changes, is the legitimation of the child affected?

No, because legirlnauon crextes a permanent starus of tire child,so this starus is irnn.rutable. However. the rights and duties of parents andlegitrmated children tlav be modified b,v a change of the personal law ofthc parents or of the f:rthcr. as the case rnal be.

The immutabhw of the status o[ a legrumated child is verv clearunder Art 180 of the Family Codc which provides tirat "the effects oflegitimatron shall retroact to the tjme of tire cirild's blrth". Aiso, Art. 178provides tirat "the annulment of a vordable marriage shall not affect thelegrumauon".

4. What are the rights of legitimated children under Philippinelau'?

T'hev have dre same rights as legltrmate chrldren (Art. 179), namelv:

(1) Ib bear the surname o[ theu tather and mother;(2) 'Io receive support ftom their parents, ascendants, and in

proper cases, their brothers and sisters; and(3) To the legidme and other successional nghts granted bl

las' ro r legiumate child.

Note: In De lot Santo s u. I-ztiano, 60 Phil. J28, ttwas held that thelegitimated daughter of a man can inherit from the man's brorher as a

legitrmate niece.

C. ADOPTION

1. What are the sources of the Philippine law on adoption?

(a) Before the Family Code took effect on August 3, 1988, ourlas'on adopuon vas PD 603 (the Child and )buth \ielfare Code), whicherpresslv repealed all the provisions oi tl-re Nerr,' Civil Code on adoption.

(b) PD 603 was later amended br,Execudve Order No. 91 signed

CONFLICT OF LAWS STATUSOFCHILDREN 99

bv former Pres. Corazon Aqurno on December 11 ,1986 regardrng non-resident aliens u'ho were aiiou'ed to adopt under pD 6L)3.

(c) Subsequenth: ali the provisions of PD 603 and E.recuriveOrder No. 91 on substanttve marters were repealed bv'fitle \rII of theFamilv Code. Certain procedutal provisions of IrD 603 on adoption(Arts. 32 to 38) were not, hov'ever. repealed bv the Familv Code.

Under the Famil,v Code. aliens v!'ere not allowed to adopt in tircPhrJrpprnes anvmore except those reterred to rn Art. 18.+ (3) thereof. andnon-resident a[ens were allowed to adopt FiLpino children oniv underthe iau' on Inter-Countr,v Adoption (Republic Act No. 8043) which wa.signed by former Pres. Fidel V Ramos on.]une 7 7995 Under this law, tl.readoptlon proceedings are to be heid in tire home countrv of the adopters.

(d) StlX later. on Februarv 25, 1988, former Pres. Ramos signedRepublic Act No. 8552, other-wise known as the "Domestic AdoptronAct of 1998", amending manr provisions of the Famill'Code ondomestic adoption.

2. State the concept and tationale of adoption.

(a) 'fhe old definiuon oi adoptron in rhe Particlar is that it is "thcact rvherebv one person is received as the offspring of another althoughhe is not sucir bv natuLe".

This dehnitron was based on the theorv that adoption is mainlr,for the benefit of the adopter, so that those who have no children orhave lost them. may have tire solace and joJ's of parenthood. and ti-rat thcvoid whicli exists in childless homes ma1, $6 frlled (\'nigo a. IkPablic, 95Phi/. 241).

@) The ratronale of adoptron has, howevet, changed, and it rs

now considered more for the beneltt of the child than for the adopter,and pursuant to this modern trend, it has been held that adoption doesnot merely establish a relationshlp of paternity and hliauon but is also an

act wirrch endows the chrld with legrtimate status (Pranick t Ref>ublir' 98Phit.66r.

'Adopuon is thus given a sociai and morai purposel that is. toe stend to the orphan or to the child of the indigent, the incapacitated ol

lOO STATUSOFCHILDREN CONFLICT OF LAWS

the sick. the protectton of socrew in tlre person of the adopter" flolentino.Civil Code of the PhrI.. 69'1;.

3. What law determines whether the relationship of adoption hasbeen created or not?

(a) The child's personal law, to protect his well-being.(b) If dre child does not reside in the countrv of his citizenship,

the personal iaw of the adopter u'tll govern, or the personai lau' of theadopter and that of the cirild wrll be applied concurrentl\,.

4. What law determines the legal effects of the adoption?

The iegai effects oi the adopuon are determined by rl-re samelaw that created the reiationship of adopuon.

The iegal effects tirat flow from the adopuon are:(a) Tire successional nghts of the adopted child;(b) The parental authorin' of the adopter over rhe adopted child;(c) The use bl the adopted child of the surnarne oF tl-re adopter.

5. An important problem in adoption in the Philippines is whetheraliens can adopt in our countrv. What is Philippine law on thematter?

(a) As stated ir.r tl're discussion of Quesuon No. 1 hereof, rvhiiethe Civil Code of the Phrhppines did not allon' non-resident aliens toadopt, PD 603 liberalized rhe Civil Code provisions on adoption andallorved even non-resident aliens ro come to the Phdtppines and adoptour childrer-r here.

(b) The Farnilr Code, howei'er, became strict in adoption ofaliens rn the Phiirppines because of reports received bi. the Comrnitteetirat drafted the Code (of rvhich this author was a member) that someFilipino children adopted bv aliens and brought bv the latter to theirhome countries suffered culrural and psr,chologrcal shocli ar.rd could notadiust to theil neu'hves in the foreign countries of their ioreign adopters.AIso. rnformauon was received that old alien pedophiles. after iravrngbeen allou'ed to adopt Fihprno children in thc Phrlppines, rvould. aitetbringing said children to tireir home conntries. simply abandon these chil-dren after tl'rev had satisfred their sexual destes on them. There rvere even

CONFLICT OF LAWS STATUSOFCHILDREN 101

alleged cases of Filipino childten who, after ha'ing been adopted br,foreigners, were killed for organ transplants in the fore4gr homes of theuadopters. Hence, the Commrttee believed that bv limrung adopuon ofFrirprno children by al.iens to former FrJrpino ciuzens (and/or the6 spouses)reiated by blood to the adopted chiidren, the latter would be givensome measure of protection bv the adopters who are their relauves byconsangurnirv.

(c) Republic Act No. 8552 or the "Domestic Adoprion Act of1998" again allows aliens (who are not former Filipino citizens) to adoptin our countr;,, provided:

(1) They have the same qualifications as tirose required ofFilipino citizens (See Sec. 7(a), Rep. Act 8552);

(2) Thet countnes have drplomanc relations wrth our countrf,(3) The,v have been livingin the Phihppines for at least three

(3) years prior to ti-re fihng of the peution for adoption,and maintain such residence until the adopuon decree rsentered;

(a) They have been certified bv their diplomatlc or consularoffices or b1' any aPProPrlate govemment agenc' that thevhave the legal capaoty to adopt in their own countries and

(5) Theil government allows the adopted child to entet theircountn, as their adopted chiid

(Sec. 7 (b), Rep. Acl 8552).

(d) As for the foliowing a)rens:

(1) A former Fihpino citizen wl,o seeks to adopt a relatjvewithin the 4th degree of consanguiniw or affiniw; or(2) One who seeks to adopt the legrtlnate son or daughterof his or her Filipino spouse; or(3) One',vho is married to a FiLipino citizen and seeks toadopt jointly rvith his or her spouse a relative within the .1th

degree of consanguiiltv or affnrq, of the Frlipino spouse;the same Sec. 7(b) of Rep. Act. 8552 provides that d.rev neednot compiv wrth dre residencv in the Philippines required ofreal aliens and they also need not submit a ccrtificatron thatthe'r' have the capacitr to adopt from the diplornatic orconsulat office of their countrv in the Philippines or an1'

other government agency.Note. however, that the special kinds of aliens enumerated above

rO2 STATUSOFCHILDREN CONFLICT OF LAWS

bv Rep. Act 8552 are requtred to be related to the ciriid to be adoptedN.rthln the .ltfi degree of consangutnrfi'or affrnrn. Art. 184 of tircFamiir Code wirrch the above pror.isiou of Rep. Act 8553 arnends drdnot Lmit the degree of consanguinin' betu'een tl.re adopter and adoptedchild. On the otirer irand. Sec. 7(b) of Rep. Act 8552 includcs childrenrelated within the 4tir degree of afhnin' to rhe adoprlng parenr. whichrelationslrip of afhnin was nor included in Art. 184 of the Famiiv Code.

This author cannor understand, though, whv Rep. Act 8552 rnthe above prol-ision hmits the degree o[relauonshrp bv consanguinlfl, 6frhe adopter and tire adopted child onlv ro rhe 4rh degree, This means thata former Filipino would not be able to adopt the child of his or her hrstcoustn (5th degree) or his or her second cousrn (6th degree). Since theimportant consideration here is the iove and protection that a relative bl'blood, who is now an alien, can glve to the child once the latter is broughtto the adoptert foreign home, it is irnmarerial how close thev are relatedby blood.

6. The cases of Republic u C,A. and lfughes, 227 SCRA 401, andRepublic u Judge Toledano, GR. 94147, June 6, 1994, decided bythe Supreme Court, denied the joint petitions for adoption filedunder the Family Code by former Filipino wives, nou'funericancitizens, and their American husbands, because what the Famill'Code only allorved was ioint adoption b,v Filipino cirizens and theiraliens spouses. Are these decisions still good under Rep. Act 8552?

No more if the aiiens husbands of former Filipino tnves cancornpll'with the requiremenrs for a[en adopters under Sec. 7 (b) of Rep.Act 8552

But, Rep. Act 8552 still requires that husband and wife mustjointly adopt, rvhich joint adoption was also required br. the Famih.Code, except when one spouse seeks to adopt his or her own illegrttmatechild, or when one spouse seeks ro adopt tl.re iegiumate child of the otherspouse (Art. 185, Famii,v Code). Republ-ic Act 8552 adds tl.rat in caseswhere the spouses are legally separated (Act. 7, sec. par., sub. par. {iii}).the husband or tl-re wlfe can adopt alone, and the consenr of the othelspouse to an adopuon Frled by one spouse is no longer necessarv.

CONFLICT OF LAWS S'TATUS OF CHILDREN TO3

7. What are the legal effects of adoption under Philippine lau'?

Rep. Act 8552 enurnerates the legal effects of adopuon as folior,r's:

(1) All legal ues berw'een the biologrcal parent /parenrs andthe adopted child are severed and the same shall be vested in rhe adopter/adopters, except in cases where the broiogrcal parent is the spouse of theadopter. In other words, parental authorltv over tile adopted child is

uansferred to the adopter.(2) The adopted child shall be considered for ail intents and

purposes to be the iegrtimate chrrld of the adopter/adopters, and as suchrs entltled to all the rights and obligations provided bv law to legrtimatechildren.

(3) in legal and intestate succession' the adoptet/adoptersand the adopted child shall have reciprocal tghts of succession witiroutdlstlnctlon from legrtirnate hliatton. 'Iestamentary succession will, however,appll if the adopted child and the adoptet or adopters had left a will.

(Secs. 16, 17, 18, ReP. Act 8552)

8. There are still other important points to remember regardingthe nature of adoption in the Phitippines law; namely:

(1) Adoption proceedings in our count4'are always iudlcial and

in rem ; i.e.. publication is tequired as constructive notice of tl-re petitionfor adopuon to the whole rvorld, since adoption creates statlls.

(2) Since there can be no valid adoption without a court decree

granting the same, a ntere agreement of adoption berweerl the adoptersand tbe parents of the child is not a valid adopuon (Santot-\'nigo u' kepub-

lic, 95 Rep. 244:), nor the fact that the child had been adopted dt .facto(ampon) by the alleged adopting patents (Ltiatin u.ludge Canpol 92 SCK42 t0)

(3) Nerther is the mere registration of the child in the civil regrstryas the child of the adopter a valid adopuon, This even amounts to thecrime of simulauon of btth punishable bv pison mayor in the medrumperiod, and a fine not exceeding P50,000.00 (Sec. 2l (b)' Rep' Act 8552)'

(a) The capaciry and tght of the adopter to file a petition foradoption, are governed bv the law in force at the time the petitron is filed,and cannot be impaired bv a new iaw disquahfuing lrrm or her for adoption

IO4 SIATUSOFCHTLDBEN CONFLICT OF LAWS

(Repabtu t'. C-4. andBobilu. GR92326.24 Jan' /992;Republ;cu. Mi//er, GRt 2 i9j7,,4Pri/ 2/. / 999;.

9. Should we in the Philippines recognize a foreign decree of adoption?

While there is no provision of law nor jurisprudence expresslyrequiring the PhiLippines to recognize a foreign decree of adoption, it isbelieved that under Sec. 48 of Rule 39 of the 1997 Rules on Civil Procedwe,\r/e can recognize such foreign decree of adoption provided the foreigncourt had junsdrctron to render said decree; and that there was no wantof notice. collusion. extrinsrc fraud, or clear mrstake of law or fact leadingto the foreign decree of adopt-ion.

This is particulady tme if both the adopter and the adopted childare nationals or domiciliaries of the Forum that decreed the adopflon (R-abel,id., p. 6a7).

10. Does adoption confer on the adopted child the citizenship ofthe adopter?

No, adoption does not confer on the adopted child the citizenshipof the adopter. Adopuon is a matter politicai. and not civil, in nature, andthe ways in which tt should be conferred lav outside the ambit of theCivil Code (LIgt l)ndanand Tberkehen u Republir. I 2 SCk4 400; aho ChingL-eng u. Galang, L-/ 1931, 2i OcL 195E.

CONFLICT OF LAWS

WILIS, SUCCESSION, and ADMINISTRATIONOF THE ESTATE OF DECEASED PERSONS

1. What law applies in the transmission of successional rights uponthe death of a person?

There are two theories or svstems in determirung the proper lawfor the transmission of successional nghts; the unitary or single sys-tem, and the split or scission svstem.

Under the unitary or single system, onll' one iaw determtnestransmission of real as well as personal properties. In countries followingthe nationality theory like the Phfippines, the national iaw of the deceasedgoverns the transmission of both real as well as personal propertles,while in common iaw countries or countries that follow the domicihan'theorl', it is the law of the domicile of the deceased that governs.

However, under the split or scission system, which Englandand the Uruted States adopt, succession to real property is governed bvthe /ex itat, sAt:ie succession to movable or personal proPerw is gov-erned bv the law of the domicile of the deceased at the time of hls death.

In the Pluhppines, we follow as already stated, tire unitary orsingle system, in that Art. 16 of the Neu' Crvrl Code applies the natronallaw of the deceased, whatever may be the narure of the property andregardless of the country where the properF is found.

CHAPTER

I06 !{ILLS, SUCCESSION ' ANd ADMINISTRATIONOF THE ESTATE OF DECEASED PERSONS

CONFLICT OI; LAWS

2. When we talk of validin' of u'ills, u'e refer to both its extrinsicand intrinsic validiw. Vhat does each validin refer to?

Extnnsic validrn' deals n,rth the forms and solemnrties in themahrng of wrlls, rvhich rnclude the age and resramentan, capacitl' of tl-retestator and the forrn o[ the will (whether orai or wrltren, pubhc orpnvate instrumen!. notarial or hoiographrc. the nulxber o[ wrtnesses.etc.),

Intrinsic validitv concerns itself wrth the otder of succession, theamount of successional flghts each heir gets, and such other matters thatfall under the term "substance" as distingurshed frorn ..form.s andsolemnities " oI rvills.

3. $/hat are the conflicts rules in the Philippines on extrinsic validityof wills?

(a) if a Filipino makes a will abroad, ire mav cornply with theformalities of Philippine law (lex nationalit) ot the lex loci nlebrationi.r (thelarv of the place rvhere ire was at the time of the execuuon of tire wilil.\rt. 815, Neu' Cir.il Code).

T'hus, a FiJrprno docror u'orking in Neu']brli rnav execute a willrn accordance with Philippine iaw 01 New lbrk lauz

(b) If an ahen makes a will abroad. he rnav complv witl-r theforma]rties of his /ar nationa/ii (the law of the countrr, of which he is acitrzen). t.he lex donidlii (the law- of his domicile) (Art. 816, Neu, Cir.,ilCode), or tlre /e.:y /oct ce/ebrationit (the law of the country rvhere he,was atthe tirre of the execuuon of the will). (Art. 17. i.d.).

(c) If an al-ien makes a wil] in the Philippines, he may complyrvitlr tlre forma-lities of his own country (/ex nationalil or of philippinelast (/ex lod celcbrationi.)

(d) As for a holographic will. u'hrch musr be entuelv writren,dared, and signed bv the hand of tl.re resraror hlnself, it rs subject to noother form and mav be made in or our of the Philippines. and need norbe witnessed (Art. 810. New Civii Code).

4. rWhat are our conflicts rules on ioint wills?

CONFLICT OF LAWS wtLLs, SUCCESSION , and ADMINISTRATION 107OT THE ESTATE OF DECEASED PERSONS

(a) Frirprnos canriot make yoint u'ills u']rether bere or abroad.-fhus, a jotnt wili rnade bt' tu'o Fiiiprnos in a foreign counrrv is void evenif valrd under tire iex ioci ceiebralioni.r ({fi.819. Neu'Cir.il Code).

ft) Joint wiiis made bv aliens abroad sirall be consrdered as validrn tire Philrppines if valid according to thelr iex nationttlii <;r lex domitilii oril valid under tile lex loci cehbratioarl(Arts. 816 and 17, id.)

(c) Joint wiils made bv aliens rn the Philippines are void even ifvalrd under thek /ex nationalii or lex dani,;liii, tn otder tlrat or-rr public pohcvon joint wills ma1' not be militated agatnst.

(d) A iornt u,i.ll executed bv an aiien and a Filrpino ciuzen abroaclwill be vahd as to the ahen (if his national la-'r,, iaw of the domicile, or the/ex /ori tvlebratiorzi allows it), but void as to the Filipino, tlre same beingagainst our pubhc policy on jornt rvdls.

5. rJflhat are the conflicts tules on the intrinsic validity of willsl

As a general ptoposinon. conflcts rules on tl,e inuinsic vahdrryoF wrlls are determined by the /ex nationalii of the deceased in countriesthat foiiow the nationalin' theory. and bv the lex donui/it at tl'Ie ume ofdeath, in countlies that follow the dorriciliary theorv

6. In the Philippines, what law govelns the intrinsic validiw ofwills?

The New Civil Code applies tlte lex nationalii of the decedent irr

par. 2 of its Art. 16. This was also followed b)' the SuPreme Court inMidano u. Bnmo, 50 Phil. 867; Be//u' u. Be//it, 20 SCk4 558; antl Ca.vtlano r.

Leonidal 129 SCK4 524.

We must not forget, however, that in case <-rf confhct berrveenthe nationalry theorv and the domiciltarv theory, w€ can treat the case as

one of "renvoi" as in the Christensen case cited ear[et in this rvork, so

that we can still appl,v Philippine law even if the deceased was a. cittzenof another countrv.

?. What are the conflicts rules if a Person dies intestate?

In civil law countries hke tire Phihppines. the nauonal larv of the

108 WILLS, SUCCESSION , and ADMINISTRATIONOFTHE ESTATE OF DECEASED PERSONS

deceased apphes. ln common law countnes like the t,I.S. and Great Bntainwhich follov, the spltt or scission svstem. rb,e iex riomialit of the deceased

at the rime of death appLies rvith respect to personai6" while the rcx situ.t

apphes with respect to real properfi.

8. What about revocation of wills, what are our conflicts rules?

(a)Undet Att. 829 of the New Civil Code, a revocation done

outside the Philippines bv a person who does not have his domrcile here,

rs valid if done accordtng ro:(i) The law o[ the place where the will vras rrrade (/ex lotz

celebrationis); or(2) The law of his domicile at the time of revocation (/ax

donicili).

A problem here wouid arise if the testator revokes his

vdll while domlciied in one country and later, changes hrs

domicile, then dies in the latter state. If the laws of hrs formerdomicile and irrs domrcile at rhe time of l-ris death are different,

which law applies? Common sense and logrc should applvthe law of the domrcile at the time of the testatork death'

but this is not what our law savs

I-lkewrse, suPPose a non-domrciiiarv makes the revocationin accordance with the law- of the place where he *'as at the

trme, are we not going to recognize the revocation? Whyindeed does the Civil Code ignore the law o[ the place ofrevocation, when we follou' rhe lex /oct ceiebrationts tndetermining: the validity of rvills executed abroad? Is notthe desite of the testator to revoke his wili as imPortant as his

desLe to make a will?

(b) If the revocation is done in the Phihppines, tt is valid if made

in accordance with the provisions of our Civil Code (Att 829' id')'

(c) if the revocation is done outside the Philippines bv a Personwho is domiciled here, it rs yalid if made in accordance with our law (the

tex d.onirzli) or the /cx ioti actu of the revocauon (the place u'here the

revocaoon was made) (see Art . 17 , pzr- 1. New Civil Code)'

9. What law should be applied in the interpretation of wills?

CONFLICTOFLAWS WILLS, SUCCESSION, and ADMINISTRATION 109OFTHE ESTATE OF DECEASED PERSONS

(a) As in contracts. the provisions of a wili shalr be intelpreted inaccordance wrth tire testator's intenuon. If the terms ar. .le^r andunambrguous, the hteral meaning of dre supulauons shall control. otherwise.the evident intention of the testator must prevail by not only refernng tothe context of the will but also taking into account the contempor".r"Lr,r,and subsequent acrs oI the restaror (Arts. 1370 to 1378, Nerv Civi] Code).

(b) If the testator's intention cannot be ascertained by thepreceding rules, the interpreration of ambiguous words must be madein accordance wrth the law which was mosr probably rn the mind of thetestator when he used those words and with which he is presumed to bemost fami[ar.

(c) If dre will admrts of different interpreta[ons, that which willmake the dispositrons operative shall be preferred. The interpretationthat will grve the will rhe mosr favorable construction to accomplish rtspurpose shall be made (Arts. 788-792, Nerv Civil Code).

(d) Every effort shouid be made ro prevent intestacy in keepingwith the policv of respecung the will of the testator, provided that thiscan be ascertained.

10. What is probate, and what are the conflicts rules on probate ofwills?

(a) Probate is the process of proving before a comperenr courtthe due executron of a will, that the testator u/as possessed of tesramentarycapacity, and the approvai by said court of the will.

(b) The allowance or disallowance of a will is essentiallvprocedural, so that the lav"'of the forum applies to all procedural matters.

(c) Under Art. 838 of the first paragraph of the New Civil Code,"no will shall pass either real or personal properry unless it is proved andallowed in accordance wrth the Rules of Court".

(d) Tirere is no period of prescupuon for tiie probatc oia will.For the probate of a wiii is not exclusivelv established ur thc interest ofthe survrtng heirs but primarilv for the protection of the tcstator's ex-pressed wishes in the disposrtron of his properties. Since the probate of

CONFLICT OF LAWS

110 WILLS, SUCCESSION , and ADMINISTRATIONOF THE ESTATE OF DECEASED PERSONS

validlr. executed u'ills is requted bv pub[c poiiq,. tl-re State could not havcintended the Starure of Limrtauons to defeat said pohct (,Gueuata t. Gaeuara.'CR L-5105, .lan. )/. / 956;.

(e) Wills proved and aliowed in a forergn countr\! according tothe laws of each counnv. may be allowed, frled. and recorded by theproper court in the Philippines (Rule 77, sec. 1, Revised Rules of Court).

(f Although a forergn u.dl had alreadv been probated in a forergncountr\, it still has to be reprobated in the phiiippines in accordance withour procedural lau; because a foreign judgment, no matter how intnnsicallvmeritorious. cannot ha'e. as a general rule, automatic extraterritorialeffect. But instead of provrng all over agarn the due executjon of the urdl.it rs ordina'ilv sufficient to ask for the enforcement here of the foreignjudgmenr of the probate abroad.

(g) The evidence necessary for the probate or allowance of willswhich have been probated outside the piril_ippines are:

1) The due execurion of the wi_1l in accordance u,,ith the foreignlaw because we cannot take judicial notice of foreign laws.

2) The testator had hrs domicile tn the foreign counrrv urherethe will was probated;

3) The will had been adrrutted to probate rn said counrry;4) The foreigntribunal is a probate courr;

5 ) Tire laws oi the foretgn country on procedure and allowanceof rvrlis were follorved.

(|,'cia. De Pereia. Tolere. 2J2 SCk4 724.

11. What are the conflicts rules on administration of estate ofdeceased persons?

(a) Bv "adminisrration" is meanr the process of determiniog andrealizing the assets of a deceased person, the pavment of tl-re debts of theestate. and the actual drstr-rbution of the residue ro the heirs.

(b) Lik" probate, administration is procedural in narure. Therefore,it is tlre lex.fori that go'erns, not the larv tirat determines how the estate ofthe deceased is ro be drstributed.

CONFLICTOFLAWS WILLS, SUCCESSION, and ADMINISTRATION 111OFTHE ESTATE OF DECEASED PERSONS

appointed by the testator rn his will). an administrator vzith a will annexed(one who is appointed bv the court if there is a will but no execuror isdesignated therein), or an administrator (if there is no will, the courtappoints an administrator of the estate of the deceased).

(d) The executor is qualified, and the administrator of the estateis appointed, by the court of the counw where the deceased was domiciledat the time of his death; or if he was a non-domiciiiary the countrvwhere his properties are found.

(e) The rights, powers, and duties of the executor or administratorare coextensive with the terdtorial jurisdiction of the court that qualihedor appointed him. Thus, an executor or administratot qualified orappointed by a Philippine court has jurisdictron only over the properuesof the deceased located in the Philtppines.

(f Administration gtanted in the country of the deceased's lastdomrcde is called principal domiciliary administration; administrationin othet counfties whete the deceased also left properties, is called ancillaryadministration.

(g) As held by the Supreme Court inTajtagu. Bengaet Consolidated,

Inc., 26 SCRA 242, the domiciliary administrator of the estate of a

deceased American citizen in the U.S. has no Powet over and is notentitled to the possession of the stock certificates of shares of stockowned by the deceased in a Philippine colporation, which certihcatesmust be delivered to the ancillary administator of the deceased's estate inthe Philippines, to be administered by the latter in the nature of assets ofthe deceased liable for his debts or to be distributed among his heits.

12. What is meant by the "caduciary rights" of a State in Conflictof Laws?

If the deceased had properties but left no heirs and no will, howcan the country where the ptoperties are located claim said ProPertles?

There are rwo theories adopted bv different states so that theymay claim the properties ieft bv a deceased who left no heirs and no will.

First, some countries includrng England and most American statesadopt the theory that such propenies have become ownedess (bona uatantici);

CONFLICT OF LAWS

(c) In charge of the admrnistration is an esecuror (rf one is

112 WLLS, SUCCESSION, and ADMINISTRATIONOF TI{E ESTATE OF DECEASED PERSONS

CONFLICT OF LAWS

hence, thev should revert to the state uzhere thev are situated bv escheat.

in the Philipprnes and some civil iaw counuies, the theory adoptedis that the State is the last het of a deceased person. Hence, the Statesucceeds to the propercies left bv sard deceased as an heL.

1ji. There is no difficulty if a foreign element is not involved in thecase. But suppose the domiciliary of one State leaves propeniesin other states? How can those othet States claim for themselvesthe ptoperties left by the deceased?

Example: A Chinese citizen died with subsantial business intetestsin the Philippines but with no heirs and no vdll. If we apply Art. 16, par.2 of the New Civil Code, the national law of the deceased appl-ies to hissuccession, and if Chinese law- provides that the home state of thedeceased (China) inherits as his last heir, China can claim said propertiesand business interests for itself.

The Phitippines can, howevet, claim said properties and businessinterests, by adopting the.theory of "caduciaq' dghts" of the State. Thisis in consonance with the proposition thar in a situation such as this, "rulesof conflict of lav;s are largelv abandoned and each country eppears towork on the principle of seizing all property of tle deceased lying withinits borders"; i.e., the Philippines should regard said prcperties as owner-less or bona uacaxtia.In short, the properties pass to the Phiiippines as anincident of soverergnty, not as afl heir @lackt Law Dictionary, Abridged,5th ed., p. 92).

CONFLICT OT LAWS

CHAPTEREPROPERTY

L. Are the conflicts rules on real and personal properry the same?Almosr alJ ieea] systems adopt the /ex tttai ot /ex rei sitae. r.e., theiaw of the p)oce wh.re the propcrry ir.f...r"i..al prop"i.n rrrus, tire 1u* ;i-;;;;..ff"::'::',1.1.*tm respe* ro

e very thin g c o n c e rn i n s re a r p rop er n.. + il ;. ;, :";1i: .1: .. ::l :,:rr. fl":::Tjlogrcal' 'As t'e pr'ce'whe'e ^ ,r.in! *:,;;a is rhe natural cenrer ofnghts ovsr rt. evervbody .o"..;;;;,ir'rlr. ,n.* mav be expected toreckon wrth the law of iuch pir.",;6ri"iii*'

564). Indeed, u ."r.r.n." to the /ex i/u.,.of real J-1'l5"io-.nal Laq p.ro r c er tai n qi predic ta bil*i; ;;,il;;;' iJTff T J

^,X."t::,:l'jffi :expectations of the parues, ,, d.oL;;;i'rr.i proo.rq,.

Tl-re same cannot be said of the law ,movables. The old rule during the Middle "on Personal properq,' or

p e n 0 n a m, s in c e p er s o n d p r; ; ;-" ; ^H

rff :.:,: ": o: :

r ;;r^:

rr:;::personal effects or b.longings of the "*'* i"t ra. he carried with hrmu'herever he wenr. Therefir.l sir.; ;;;lro., aa not have , n*"jsltus, an artificial situs rvov/ner. "s glven to them; namely, the personal l^* "a;lr;

Recendy, in mab.." ^d;;;;;ft;'r#:t countnes' tbe lex itat or lex rei tilaa has at.so

:il;;;;:;;il^i;1Tl:1i.#::":#lT:*11ili.ff::,i:lfor the patties and thrd persons *ho -uy be affected by ights in ren

114 PROPERTY CONFLICT OF LAWS

created over personal properues to have those nghts enforced and madeeffecuve 0il,blff. rd.). As the place wi'rere tl.re ProPerties are located has

the iegal and coetctve power to enforce sald rlghts, the lex .rltu.t or tlex rei

sitae zpphes to said properues (Goodricir, Confuct of Laws, p 470;.

2. How about in the Philippines, have we also adopted the rule ofthe lex situs or lex rei sitaewith resPect to personal properties?

Yes, for Art. 15 of the Neu'Civil Code provides that "realproperw as well as personal properly is subiect to the iav/ of the countrywhere ir rs situated''.

3. Vhat was the reason given for the change of rule in the NewCivil Code?

The late Senator Lorenzo M. Tanada, Chairman of the SpecialCommittee on the Neri" Civrl Code, explained thc reason thus: "Nowthat there has been a great increase in the amount and variew ofpersonalproperfi, not immediateli' connected with the person of the owner, itwas deemed advisable bv Congtess of the Philppmes to adoPt the doctrine<:f iex rci ilae also to movables"

lndeed, it l-ras been held that personal Properrv mav be separatedfrom its owner, wiro mav be taxed on its account at the piace where theproperty is located. althougl'r ire is not a domrciiiarn citrzen or resident oftlre state which imposed the tax (L4anila Ga.t Cor. u. Colleclor, 62 Phi/' 89r.In fact, the concept of movabie proPern, has so grown in tl-re Philrpprnesthat even lntangible properties like sltares of stock in a corporation'franchises, credits and tl-re like are nou' considered movable propern'although thev have no phvstcal or materiai srtus.

4. What matters connected with real property are governed by theIex situs?

Extrinsic and intrinsic validitv of transactions over real proPerhsuch as alienauons, translcrs. and mottgaees: capacitl'' of the contractingparties; interprctation of documents, eFfects of ownersl-rip; co-orvnership;lccession: usuFt'uct: lease: easement: quieung of utle: registration: pre-scrrpuon; pohce power: cminent domainl and taxation are govemed bvthe iex.ri/u.;.

Example: X, a California ciuzen domiciled in Caiifomia, sells toa Filipino domrciled rn the Philippines a piece of land located in Florida,USA.

(a) The exrnnsic validrn' of tire rransacuon (the formalitres) isgoverned bv tire iex itus (Floidalawi.

(a) The capacities of both vendor and vendee are govetned byFiorida Law

(b) Tire rntinsic validiry of the transaction is govemed bv Flondalaw

(See also pars. (2) and (3) of Art. 80 of the Famrly Codeapplying the lex ila.r to the exftinsic validity of contractsinvolvingteal properties not siruated in the PhrJrppines).

5. What are the exceptions to the rule of the /ex situs ot lex teisitaewith respect to teal properties?

The exceptions to the application of the lex itus ot lex rei silae

with respect to real properties are the foliowing:

(1) Succession: In civil law countries iike the Phrjlppines' testate

and intestate succession, vrhether the properties are real orpersonal and wherever thev tnav be located' is governed by thenatlonal iaw of the deceased, not the lex sitas. including the orderof succession, the amount o[ successional nghts' and dre intrrnsicvahdrr,v of testamentarv disposiuons (Art' 16, par. 2, New CivilCode).

Capacrw to succeed is also governed bl the nauonal iaw ofthe deceased (Arr 1039. id.).

(2) Contracts involving real properw but do not deal withtrtle or reai rigirts over the ProPert)', the issue being the contractualrights and liabiliues of the parties, are governed by the ProPerIarv of the contractl i.e., either the lex /oci t'o/unlalzs or the /ex haintenlionA .

Example: A Filipino landowner hires a J'apanesegardener for the latter to convert into a Japanese garden a

parcei of land in the Philippines' This contract is notgoverned bv tl, e lex ita.r akbotgh the land to bc developedis located in the Phrlrppines' \'Vhat governs is the proper larv

of the contract benveen tl-re parties'

CONFLICTOFLAWS PROPERTY II5

115 PROPERTY

(3) in conttacts where reai ptoperhr is grven as secunw b,v

wav of mortgage to secure a principal contract (such as a ioan),the loan rs governed bv the proper laq,' of the contract berweenthe partres, while the accessory contrzct of mortgage is gov-erned bv rJ;'e hx itat.

(a) While the valtdrq,'of a transfer of land must, as a rule, bedetermined bv the lex iltus, the validiry of a contract to transfer isdetermrned by the proper law of the contract (Salonga, Priv.International Law, 1995 ed., p. 473). The obvious explanationfor this is that while the transfer of land involves the t-itle theretqa mere contract to transfer is a personal contfact that dogs notcreate dghts in reru. (id.)

6. What are the difficulties in applying the rule of the lex situs orlex rci sitae to movables or personal properties, and how ate theyto be resolved?

(1) If the personai property is tangrble (called chose in possession)and has a fixed sirus, there rs no problem. But there are many differentkinds of personal properties that do not have hxed situs, like those thatare usually in mouon or have changrng sirus (e.g., vessels and goods intransit). or intangrble personal properties like rights and shates of stock ina corporation which, because they have no material existence, do not alsohave material or tangible sirus.

(2) The aforesaid personal properties which are usually inmouon or do not have tangrble existence are thus given artificial orconstructive situs, which will be discussed in the succeeding questions.

7. What constructive situs is given to choses in possession that areusually in motion?

(l) Vessels, in view of their inherent mobihry are governed by:(a) The law of the flag, if it is a public vessel;

ft) The law of the country or place of regrstry. if it is a

private or commercral vessel, If, however, the vessel isdocked at a foreign port, said port is deemed as itstemporary situs.

CONFLTCT9FLAp5 CONFLICTOFLAWS PROPERTY I77

(2) Goods in ftansit are governed as follows:(a) As to liabfity for loss, destrucuon, or deteriorauon of

goods in transit, the law of destination is applied (Exampleis Art. 1753 of the New Civil Code).@) Th. varidity and effect of seizure of goods in ttansit are

governed by law of the place where the goods were seizedw*rich is their temporary situs.(c) Disposition or alienation of goods in transit is genenlly

governed by the propff law of the contact between theparties (the kx loci wlantath or hx loci iilentiorn).Th. reason isobvious: such disposition or alienarjon is effected through acontractual obligation.

In some states, however, the transfer of tide to chattelsis govemed by the law of the place where the chattels arelocated at the time of the transfer, and this title willordinarily be recognized in aoy other state where the chattelsare brought or transferred.

8. What are the rules in grving constructive situs to intangiblepetsonal ptoperties or choses in action?

lntangible personal properties or choses in action may be credits(or debts), negotiable instruments, shates of stock in corporations,franchises, goodwill of a business, or intellectual propetties like patents,tradematks, tradenames, and copynghts. The situs 5{ven to them are asfollows:

(a) Credits (or debts):

(l) Involunary ftansfer or assignment of a debt (gamishment)- The situs is the place where the debtor may be served.withsurrunons, which is usually his domicile.

(2)Voluntary assignrnent or transfer of credit - The properIaw of the contract controls; i,e, the proper law of the originaltransaction out of which the chose in action or credit arose.

There are other theories like:(aa) The law of the place where the assignment is ex-

ecuted - This theory is criticized because the law of the placewhere the assignment is made may be purely fortuitous or

118 PROPERTY CONFLICTOFLAWSCONFLICTOFLAWS

PROPERTY 119

accidental. oI there mat'' ha\re been several assrgnmenrs allvaLid accordrng to their respective /e;yet actu:.

(bb) The iau' of the piace rvhere performance orpavmeflt ts normall-r' expected - firis theorv ma\'-. however.contemplate a muinple situation, since recovcn'mav be madein any iurisdrction wirere tl-re debtor mair be made subiect.

(cc) The nat-lonal iau' of the parues or, in a proper case.' therr domiciliary lar'": But tl-re parties mav have dtfferent

personai laws, or a needless invesugation of what the personal

laws of tire Parties is inevitable.

(3) Situs of a debt for taxatron purposes rs the domicile ofthe creditor, where the collecrible cred.tt may be taxed. (Minor,id .PP l8l-282)'

(4) For the purpose of administenng debts. the sirus is tl.reolace where the assets of the debtor are actualiv situated (Minor,

ta, OP 283-285)'

ft) Negotiable instuments:

(1) 'I'he iarv drat determ-tnes whedrer dre urstnulent rs negotiable

or not is:(aa) The iaw governing tire nghts embodred in the

instruffrent CX'blff, rd.. p. 561). Thus. rf it is a Phihppinecheck, Philippine law will applv; rf it is a California check,Calitbrr-ria lau' applies.

(bb) The Arrerican Restarernent, hou.ever. ciarrns thatthe sirus is the place where the instrument $'as executed(Am. Restatement, p. 348).

(3) The law drat determines the validrw of the transfer, deliverr,:

or negotiation o[ negotiable instrurrrent rs gencrallv the la*' ofthe sirus o[ tl-re instrument at tl"re tinre of transfer. deliver)'. ornegotiation (Cheshu'e, Prir'. Int. Law, p. 622).

(c) Shares of stock of corporations;

(l) Sales of ct>rporate stocks are Poverned bv tl-re law of theplacc o[ lncorPor:rtion, since rt is there that the transfer is

rec.r.d.d rn thc books o[ the corporation (Reale, Foreign

Cotpotations, Sec. 376; alsq Sec. 650, Corporarion Cocie ofthe Philippines)

Attaching or execudon credirors are not bound bv theransfer unless entered in the books of the corpor a6c>n (LJnson t:Dionmito, 6r Phil' 53-i), unless said creditors actuallv knew of theunregistered transfer (Fua Cn a. Summerr,44 pbit. i0,

(2) Chattel mortgages or pledges of corporate shares of stock,even if registered in the colporate books, do not bind thecorporation, but the parties are bound as long as they are validlyentered into by them (Monserat u. Cewn, 5S Phit. 26/).

(3) Sale of corpotate shares as between the patties isgoverned by the proper law of the contract (the lex loci uolantatisor /ex bci intentionit)bectusethis is really a contract. In many cases,the proper law of the contract is the place where the certificate isdelivered to the buyer (Cheshire, id.,p.62!.

(4) Taxation on dividends received by corporate shates isgoverned by the law of the place of incorpotation. Thus, taxeson dividends from shares of stock in a Philippine corporationmay be taxed here, although the owner of the shares does notreside in this country (Matila Gar Con a. Co//.,id)

(d) Franchises:

Franchises are special pdvileges confened by the govemmenton an individual or a corporation and are subject to the Iaw ofthe state that gmnted them.

(e) Goodwill of a business, and ta:ration thereon:

Art. 521 of the New Civil Code provides that goodwill of abusiness is property and may be transfered together wrth theright to use the name under which the business is conducted.

The goodwill of a business, as well as taxation thereon, isgoverned by the law of the place where the business is carriedon. "Goodwill" is the patronage of any established trade orbusiness; the benefit acquired by an establishment beyond thevalue of its capital stocks, funds, or property, in consequence ofthe genenl public patronage and encouragement that it receives

r2O PROPERTY CONFLICT OF LAWS

from its customers (See Menenrieiu Ho/t, 128 ti.t 514).

(f) Patents, copvrights, trademarks, tradenames, andservicemarks:

/1) As a general ruie, patents, copvrights, trademarks, andtradenames are, in the absence of a ueary protected onl,ir by thestate that granted or recognized them (lVolff, td., p. 558).

(2) In the Philippines. Art. 520 of the New Civil Codeprovides that "a trade-mark ot trade-name duiv regrstered inthe proper government bureau or office is owned bv andpertains to the person, corporatlon. or hrm registenng the same,subject to the provisions of special laws."

(3) Under Sec. 21-A of Rep. Act No. 166, as amended bySec. 7 of Rep. Act. No. 638), any foreign corporatlon or;urisucperson to whicir a mark or trade name has been registered orassigned under this Act mav bring an action for inftingement,fot unfair competition, or false destgnatron of origrn or faisedescription, whether or not it has been licensed to do business inthe PhiJrppines under the Corporation Code, at the time it bringsthe complaint; Provided that the country of u'hich the saidforeigo corporation or jurisuc person ts :r ciflzen or in whrch it isdomiciled, by tteaty, convendon, or larv, grants a similar pnvilegeto corporations or jurisuc persons of the Phihppines.

(a) As to copynghts, the formel ruie is that a copyright isprotected only bv the state that granted or recognized it, absent a

ueag. Thus, a copvright in State X could not be enforced in ourcountry in the absence of a treary unless a similar copvright wasalso applied for and granted in the PhiJ-ippines.

(5) On September 27, 7965, the Phiiippines became ^

p^rwto dre Union Convention for the Protection of lndustrial Propertyadopted in Paris on March 20,'i993. Art. 8 oi said Conventionstates that "a trade name lmeaning, a corporate name] shall beprotected in all fie counftles of the Union ulthout the obligauonof hhng of registration wirether or not it forms part of theftadename".

CONFLICT OF LAWS PROPERTY I21

(.6\ ln Philtps Erporr B.It. u, C4, 206 SCk4 457 (1992), theSupreme Court reiterated its earlier ciecision in Wesnrn E quipmentand Suppn Co. u. fu1et 57 phil /t j (7927), that a corporarionttigirt ro use its corporate and trade name is a proper$ nght, angbr in rem,wlich is enutled to protec[on like any otl.,., tungibi.properry and cannot be rmpared or defeated by subseq"uentappropriauon bv another co{porarion in the same field.

(7) Speaking of trademarks, the High Court, jn Enera/dCament MJg. Cor. u CA' 25/ SCk4 600 (/ ggj),ireld that.,actualuse in commerce in the Philipprnes is an essenrial prerequisite forthe acqursiuon of ownership over a trademark pursuant to Sec.2 and 2-A ol dre Phihppine Trademark Law" E.A. 166)

(8) in 1998, Congress passed Rep. Act No. 8293 known as"The Inteliectual Properq'Code" and establishing the IntellectualProperty OfFrce. Under Sec. '123 of the Acq certain marks cannorbe registered, among whicir are those -

"x x x identical wrth, or confusingly srmilar to,or constituting a translatron of a mark which isconsidered by a cornperenr aurirority of thePhrJrppines to be rvell-known internationally andrn the Philippines, whether or nor ir is registeredhere, as being the matk of a person other thanthe applicant for registration, and used foridenucal or similar goods or services".

Sec. 3 of the same Act provides that ^ny forcrgncorporation, being a national or domiciliaq' of a country whichis a partv to a convention, ueat\! or agreement relating to intellectualproperfv ngirts to which the Phihppines is also a partv or whichextends reciprocal rights to our nationals by law, "shall beentitied to benefits to the extent necessarv to give effect to anyprovision of such convention x x x". Such foreign corporauoneven if it is not engaged in business in the Philippines maynevertheless bring a civil or admtnistrative action for opposition,cancellation. infringement, or unfat compefltion, as providedfor in Sec. 160 of the Act. However, under Sec. 156, same Acr,onlv ownerc of registered marks may recover darnages fromanv person who infringes his rights.

CONFLICTOFLAWS CONTRACTS 123CONFLICT OF LAWS

CONTRACTS

1. What is a "contracttt and why does the law on contracts presentmany problems in Conflict of Laws?

"Contract" is dehned bv Art. 1305 of the Civrl Code of thePhihppines as "a rneeting of minds betrveen lwo Persons whereby onebinds hlnseif, with respect to the other, to give somedting or to rendersome service".

Although a conftact may create a status like rnarriage, or createsor uansfers real rights or title to properry (like sale), the specific subjectof "contract" in Confuct of Laws is limited to purely civil or commercialtransactions.

Every state, in the exercise of its sovereigntl', has the nght todetermine its own law on conuacts. As long as there is no foreignelement in a contract, questions pertaining thereto are governed by theIarv of the forum state. It is when there is a foretgn eiement in a contractthat problems arise, for then, the forum v'ill have to decide what ]awshouid be applied in deterrnining the existence or non-existence of a

contract, as well as its validrq', bodr extrinsic and intrinsic, and the capacityof the conftacting parties.

A. EXTRINSIC VAIIDITY OF CONTRACTS

1. \$/hat conflicts rules determine the extrinsic validitv of contracts?

As a general rule, the exrrnsic validrty of contracts is governedby rhe kx loci cehbration*, otherwise calfed lex loci contractut.

Att. 77 of the Civil Code of the Philippines ptovides that ..theforms and solemnities of conftacts, wills, and other public instumentsshall be governed by the laws of the country in which thev are executed".And Sec. 9 of the American Resratement Second, considers as bindingthe "formalities which meet the requirements of the place where theparties executed the conttact".

2. Are there variations of the rule of lex loci celebrationis indetermining the extrinsic validity of contracts?

Yes, there are variations.

(a) Suppose a contract is entered into by parries in rwodifferent countries bv cablegram, telex, or fax. \fi/hat is the placeof execution?

(l) Arl 1,319, par.2 of our Civil Code states rhat"acceptance made by letter or telegram does not bindthe offeror except from the time it came to his knowledge.The contract, in such a case, is presumed to have beenentered in the place where the offer was made.

In the PhJrppines, the bx loci alebratioaziis, therefore,the country of execuuon.

(2) In American laq however, a contract is deemedentered into in the place where the acceptance of theoffer is posted or mailed.

@) Suppose the place of execution was meteiy casual oraccidental like a Chinese and a Filipino who, meeting accidentalll'in Hoogkong, entered into a certain contract or agreement thereto be performed in the Philippines.

CHAPTERM

124 CONTRACIS CONFLICI OFLAWS

Itt stttlt :r clls(" lh( l;r*'rvirich has the most significant

reiel.t.tlsltlptt' ti"l ''^"t"t tt.tt shortlcl bc applied ln .tircrrvords'

tht'c.rtrl tttt"'ttl 'q-t1''t' 'i'tt iarl. rvhich the partres must hav-c

assrttrctl ri'ottitl lrc aPPitecl tc; qt'-c eifect t() tilclI transactl()n'

namelt' I thriqlPrllc larri

(c) 13v wav oi other excePtlons x1s' wiren the lex loci clnfracla!

ctr lu loti ielebrationi't contravenes an established and rmportant

pohcv of tt-" toru-; or to ^PPI\;

it wouid work gross injusuce to

the people tr 'i" i*"*; orli tire ftan'saction is contra bonot mores'

Remembettit"'ft"t""tcementolaforeignlavrsonlvamatt:rof conuq" and tire foregorng cases arc clear excepuons to comlq''

B. CAPACITY OF PARTIES

1. What are the conflicts rules in determining the capacitv of the

Parties to a contract?

(a) Capacrn' to enter lnto contracts is generalll' gc,l':t"td -:'i^'n'

personal la'r' oi tire O^'Jt" tiril is ff the natlonti larv of the parues ln

countries followrng the nadona[w theorl" and bv tl-re law of the domrcile

in countries r"["*"g t;Jt"ttiiiti"u tl-'et'rv' Excepuons are conff2cts

involving aliet'otioriot encumbranct of p'op"'ties' botl.r reai and

personal, in which *'"t t^p*'* t'f tl-tt to'lt'"cttng parties is governed

bl the /ex rilzt'

(b) in the llilpp,n.,t1,::.^':?:'[,il;r:T".,, * iJ:i::thrt cepaciw of I Frirprno ls governed Dr I

b".nrr.. ve folion' the nadonaliry theort''

2' What law governs the capacitv of the Filipino in the follorving

sPecific Problem?

A 20-vr' old Filiprno enters into a contract in ltaiv where the age

cii maiorrtv i' 21 ;' ;:;ililer plead irrs incapacin under ltalian

Iau' (tr"lrich is the /rr ioct ceiebralionu) to avoid [abiiiw under tht contract?

No. llc<:ause r'rnclcr l)hil' latrr hct has dre capacin'to c()nffact (RcP'

6809 has rcclucecl ";';:';;;;;"q t. 18 vears)' 11 tt'tt;^1-L:.]'ot

the Phrhpprncs pror'ides that capacifi' 'o tot"'^t' of Filipinos is govetned

bv therr nattonlrl hw

CONFLIC-T OF LAI,VS CONTRACTS 725

3. what law will govern the incapacitv of the alien in the followingspecific problem?

An 18-yr. old alien, who has no capacitv ro contracr under irisnadonal iaw wherein the age of maioriry rs 21, enters mro a contract in thePhihppines. can he later plead his incapacrtv under his national raw toer.ade the contract?

No, because to apply the narional }aw (or iaw of dre domicile)of the alien in determining his capacity ro conftac would require Fil_ipinosto fust ascertain what the personal law of thar alien is. sometimes withgreat difficulry such drat busjaess uansactions.xrith aliens would be greatlyimpeded.

4. The weakness of applying the national law of the conractingparty as to his capaciry in the foregoing cases is thus seen. Howcan such difficulties be avoided under our law?

(a) If the conrract is entered into in the Phiiippines, or rheperformance of ti're contract would be in the Philippines, vre shouldapply, not the personal law of the parties, but the proper law of thecontract or the law mtended bv the parues, to determine tl.reir capacity.(see Paras, supra, ciring dre Geneva Conventibn and the German CivilCode)

(b) We should limit the application of Art. 15 of the Civii Code(on capaciry to conftact) to agreemenrs involving familv and domestictelati.ons, while we should apply the proper law of the contract in businessor commercial transactions (Salonga, supra, citing Rabel).

C. INTRINSIC VALIDITY OF CONTRACTS

1. What are the conflicts rules on intrinsic validity of contacts?

(a) Broadly speaking, the intrinsic validiry of a conuact isgoverned b1' the proper 1aw of the contract; i.e., the /ex loti uo/antatitor the lex lod inlenlionis.

ft) In Amencan lau'-(1)The Amencan Restatement of 1934 required the

application of the proper law of dre contract, or the lawof the place of performance.

126 CONTRACTS CONFLICTOFLAWS CONFLICTOFLAWS CONTRACTS I27

wiren the change is so revoluuonarl' that it could never have been con-tempiated bv tl-re parues Oiblff. supra. zl30--131).

(c) Several laws mav be selected. each o[ which u'ill govern ti-r€different elements of the transacuon (Chesirue, Private International Lau,p.236)

(d) If under the selected law, the contract is legal. but in the place ofperformance, it rs illegal, the selected law should prevail and the contractshould be considered legal (II Rabel, supta, p.537). Orherwise, the placeof performance, which couid be merely accidental, wili control. Besides,the place of performance mav be different under different larvs fWolfi,supra. p. 135)

(e) Assuming that the law ol the place of performance can be ascer-tained, (as when it is expressly agreed upon b1' tlie parties), still, quesuonsof substantral and essentral vahdtry (such as whether the contract is valid't'oi.dable, or void) should be governed by the proper ia.r" o[ the contract.Onlv minor details (such as the time of ptvment during busrness houts)should be governed by the law of performance (Chesite, supra)'

(f) \\hile ti.re parttes may stipulate on the proper law of the contract,thev cannot stipulate on the jurisdiction of courts or to oust our courtsof therr: judsdicuon (Molina r. De la Naa 6 Ph;/. 12).

(g) The parties cannot also contract away aPpLcable provisrons ofour law that are heavily impressed wrth publ-ic interest or which involvepublic policy (like our iabor laws) (Pakzstan Internationa/ 'Airlinu u Opk'1e0 scK+e2.

(h) American law recognizes "cognovit" clauses if the parties wercof equal bargaining power and the debtor voluntarily agreed to sald

clause.

"Cognovit" clauses specify rvhich courts would have

iurisdiction in case of breach or default in payrnent' or it mavbe one that waives the debtor'.s right to notice (otl.rerwise knorvnas confession of iudgment).

(2) According to ti-re Second Restatement' howcver' the

la.r, to be applied should bc the larv clrosen br. the parues: ttnone' the lav'of the state u'hrcir has the most slgnlllcxnirelationship to the parties or to the transacilon

(3) Prof. Raleigh \4rnor advocates the application of the

followtng different laws:(i) As to the perfectlofl of the contrac t - lex loci nkbrationit'

(ii) As to the validrry of the consideration - hx loci

considzrationis.

(') A.,.Gff;::T#::f;ilffi /;;i;ci ntu'ln ni:

(c) In the Phil-rPPines:

(l) l&'e have no specific provision of lav'applicable to

conflicts rules on tl-re intrinsic validiw of contracts'

Horvever, the poiicy oi our law is to give effect to the

rnteorion of the parties' Indeed, the parties may establish in

their.contractssuchtermsandconditionsaStheymaydeemconvenient, ptovided they are not contraly to law' morals' good

customs or public policy (Art' 1306, New Civil Code)'

(2) Thus' rve should appl,v the ProPer law o[ the contract'

i.e.. the lex lotz aohtnlalei (the law expresslv agreed upon by the

parti.es) or the /ex loci inlentionis (the law lmpliedl-v agteed upon

ty tl,. po.u.r), as determined by manv factors' especially the

iaw that has the most substantial connection widr the transaction,

or the law that may be presumed to have been intended by the

parties to bind their uansactions

2. But there should be limitations to the court's choice-of-law indetermining the intrinsic validity of contracts' Can you state whatthev are?

(a) Generally, the parties cannot select a law that has no connection

at all with the transaction

p) If the law selected should change' rt ls the new law that should

be applied, for it may be presumed that the Parties knew that law can

^l.,uou. b. chanped as times and condiuons change' The exception is'

12S CONTRACTS CONFLICT OF LAWS

D. SPECIAI KINDS OF CONTRACTS

1.. Based on our existing lau's, state the conflicts rules in thefoliowing special kinds of contracts:

1. Barter. salc. donauon:

(a) Extrlnslc validiw - lex tilu.r(b) Capaci6' of the parues - /ex situ.r

(c) Intrinsrc vahdrq' - kx vlut

2. Lease of properry:

(a) If it creates real rights, such as those for a period of moretl-ran one vear br is regrstered, apply lex sirus.(b) if the lease is from montl-r-to month, week-to-week, or da,v-

to-day. and does not cteatc teal nghts, apply the law on contJacts:(1) Extnnsic validitrl - lex lori celebrationit(2) Capaciw of the parties -personal ]aw of the parties(3) Intrinsic vahdity - lex loti uoluntath or lex loti intentionit

3. Pledge, chattel mortgage, real estatc mortgage, antichresis:

(a) Extrinsic validiry - kx .rilat(b) Capacity of the parties * lex ntul(c) Intdnsic validrq' - lex iltas

These are governed bl'the lex situs because they arecontracts of encumbrances of property, real or personal.

But since they are accessorv contracts, if the principalcontract secured bv them is void, thev are also void.

4. Conuact of loan:

I[ it is mutuum, apply the rules on contractsin gencral: i.e ..

(a) Extrinsic validrq' - lex loci rclebrationi.r(c) Capaciry of the parties - personal

law of the parties(d) Intnnsic validiq - lex lorz uoluntatis or

/ex /ut inlenlnni.tIf it rs commodatum, appiy the lex situt because it is a real

conuact.

coNFLIcroFLAws coNTRAcrs t2g

5. Lease of service (or empiovment) agency, guarantv or surewship.

1 .Jn..: are personal conrracrs; hence the law on contractswili apply(^) Extrinsic validtry _ lex /oci celebrationit

. (b) Capaciry of.f.. n"rues _ personal law of the partiesi G) Intrinsic validrty - /ex bi aoluntatit or lex lociinteilioni.rj nut an agency to alienate or encumbet real property: is governed by the /ex itat.

6.Contract of ransportation or carriage:$* This is a contract to render service; therefore, the law oncontracts applies.

(a) Extrinsic validity _ lex loci celebrationit(b.)

-Capacity of pardes _ personai Iaw of the parties

(c) Intrinsic validiry - lex hci uolnntatit or /ex /oci intentionis(d) Uabilitv for loss, destruction, or deterioration ofgoods in transit _ law of destination of the goods (Art.

1753, New Civil Code).(e) If the Carriage of Goods by Sea Act governs,

the limitation of the liabiliry of the carier underiaid Actapplies, unless the shipper declares the goods and insertssuch declaration in the bill of lading Q4meican pretidrnrUnes a. KWrr, fiO phil.24j (tg6q.

I{ however, the contract is for intemational aL transporation:(a) The [abfity of the airline in case of death, injury topassengers, o^r loss or damage to cargq i. go\r..rr.j buthe Warsaw Convention,

^, ,m.nd.4 ,o oihi.h *. b",_came a party in 1951 (santos III a. Nortbwett oient,4ir_tine4 210 SCk4 2 j6 (t 994.(b) But if there was malice, gtoss negligence, bad faith,9r improper discrimination Jn the p".t of *" .roi.. olIts agents, the carier is liable for damages beyond thosetT**a by the Warsaw Convenf_ion ltiprqr.'p"r2;,-;;SCLA ajt

-(1965); KLA4 RUal Dach Airitu ,. C)1..', osSCRA 237 (t 975); Sabena Eelgian lyorld Airlinu t. C_4".255 SCRA 3S (7 e96).

!cbL]

CONFLICTOF LAWS

CHAPTERMTORTS

aF"('A,J

c

<.E

1. What is the meaning of "tort"?

(a) "Tort" is a legal wrong cornmitted uPon person or proPerry

independent of contract^

(b) In Spanish lavr, the concePt of "quasi-dehct" or lalpa

aqailiano

-.t ra.. all acts or omissions committed through fault or negligence caus$g

damage to anothet. independent of contract'

It covers aII cases where a Person causes damage to another through

negligence, or with no tntentiorto do so; i'e'' unintentional wrongs'

(c) In American lavi however' "tort"-has a broader'meaning' for it

covers legal wrongs toi o"fy commrtted through negligence' but also

those committed with *^Utt t' willfi:l tntent' but of course' independent

of conffact' Otherwise, it *tt U" breach of conftact and covered by

another field of law, conuact law

2.Vhatistheconcept'of'(tott''inthePhitippines?

Our concept of "tort" under the New Civil Code is a blending

of the Spani sh cr'tlpa-aquiliana and the American tort' which mav be

. committed not onlY ifttotgft fauit or negligence' but also with malice

andwillful intent'

Thus, Art' 20 of the New Civil Code provides: "Every Person

=L'

.'t.l

t.ttns

CONFLICT OF LAWS TORTS 131

who, contrary to law. wilfully or negligently causes damage ro anothei.shall indemni$ the latter for the same". This is a new provision underchapter 2 of the code on Human Relabons, which is an enrirely neu,Chapter in the Code.

4rt.2176 of the same Code, on the other hand, tetains the Spanishconcept of cupa aqailiana ot quasi-dtlict. It provides:

"\X{hoever by act or omission causes damage to anothet,there being fault or negligence, is obliged to pay for the damagedone. Such fauit or negJigence, if there is no pre-existing contractualrelation between the parties, is called a quati-dtlict and is governedby the provisions of this Chaptet."

3. In Conflict of Laws, what law governs liability for torts, andwhat ate the reasons for the tule?

(a) Liabfity for torts in general is govemed by the /ex loci delicticommbii; i.e., the lav of the place where the delict or wrong wascommitted.

@) Reasons for the rule:(1) The state where the social disturbance occutted has the

primaty duty to redress the wrong and determine the effectsof the rnjury; and

(2) To compensate tle victim for the damage or injurysuffered.

4. In applying the rule of lex loci delicti conmissii , how is thelocus delicti determined, especially if the wrongful conduct iscommitted in one state and the iniuries are sustained in another,or the conduct is a continuing act that spans several states (like inthe U.S.)?

There are at least three (3) theories tn determrningwhere the bcatddictik:

(a) Civil law theoty - the loat dekcti is v.rhere the act began. Thisis so since the rules on tort are intended to regulate humanconduct, such that a person who willfully and negligendyacts contrary to the social norms must be held liable for the

CONTLICT OF LAWSCONFLICTOF LAWS TOf,TS ur3

Upon their return to New York. Babcock sued -Jackson fordamages under Nev'York lavi Ontario,s law does not al.lov,an1 reco\/en'. Can Babcock recover damages from Mr. Jacksonunder Ner*'' York La'u'?

Held: Yes, for, except for the minimum conract \rrlthOntario law as the accident happened in that place, ali thedominant contacts and factors connected with the accidentwerein New York; namely, the parues resided in that place; theirguest-host relationship started in New York and was to end rnNerv York; and the car where the parries rode was garaged,hcensed, and insured in New York. So, the state of Nerv Yorkhad the most significanr relationship to the case.

,Q) Saadi,4rabian -4irhnu r C-4, 297 .tck4 a69 ( 998); .

Here, our Supreme Court held that Philippine law shouldapplyi because it was in the Philippines that private tespondentdeceived pla:nnff-stewardess; plainbff was working for respondenthere; plaintiff's natrona]itv and domicile rvere here; we wereintrmatelv concerned with the ultrmate outcome of the case notonlv for the benefit of tl-re litgants but also for the vindication ofour country's svstem of lau'and justice in a ttansnadonal setung.Hence. the lorus drlittiwas the Philippines

(b) The interest-analysis apptoach:

This approach considers the relevant concerns that nvo ormore states may have in the case and dreir respecuve interests inapph'ing their lav's to it. I[ this approach is applied to the Rabcockcase cited abor,e, it would appear that only New \brk lav' had a

legrtrmate interest in advancing its purposes and pol-icres, whileOntario, Canada iaw had no intcrest to advance. ln othcr words,it was a case of false c.rnflict.

If, horvever, the case poses a real conflict berween the in-terests of two or more States. if the interested forum finds thatthe other State has a greater claim rn the :rpplicauon of its law toa glven case, the forum should vield and applt' the larv of theother state. Or, if the forum is disinterested in the case, it candismrss the same on the groun d o( lbran rcfl Lvnuettien,r. In short,the State which has the rnore relevant and rveiglrw interests in the

132 TORTS

inlurv causcd (il Rabel, suPra, p' 303)'

Example: \X4rile huntrng m State X near the bouncian'

of Statc i', Jrm "ccidentallt' shot Ross' who was standiog

onasueet-instate\lThelocusdclictirsStateX'becausethat rr/as where the negligent act occurred'

(b) Common law theory:The locus deluti is the place where the

wrongfui act became effecgve The reason is that wrthout an

injurf the,. is nothlflg to ptotect and there is no necessit\ fot

;udicral telief'

Example: In the above examPle under par' (a)' the

locus dzlicti is State Y'

(c) Theory of Dr. Rabel - The locat delictiis the place which has

the most substanrial connecdon wlth the wtongful act'

Example: The situs of the radio station whete a

]ibelousbroud.".tismadeisr\elonsdzlicti,evenifthebroadcast is heard in manv Places'

5. Because of the diffrculty in determiningwhere the locus delicti

is, some modern theories have been developed in determiningliabitity for totts. Please state what thev are'

(a) The de of the "State of the most signifi-cant telationship":

This de as stated in the Second Restatement of 1969' is

that the rights and obligations of the parties in a case of tort is

determinei by "the local law of the state which' with respect

to th" p^rdiar issue, has the most significant relationshLrp to

the occunence and the Patties"'

ExamPles;

(l) Babcock u. Jackton, l2 N'Y'2d 47); 191 It'E' 2d 279

(96)'' Babcock and Mr' and lr'{rs' Jackson left New \brk'their residence, in the Jackson car driven by Mt'Jackson for a

weekt trip to Canada. \X4rile uaveiing in Ontario' Canada' Mr'

Jackson lost conttol of the car and Babcock was badly hurt'

134 TORTS CONFLICTOF LAWS

case should be constdered tbe ioul deJicil.

(c) Qaver's principle of preference:

Under this theory, a irigher standard of conduct andFrnancial protectron given to the iniured party by one State isapplied by the State where the iniury happened, if the latterState adopts a lower standard oI conduct and financialprotectlon to tl-re iniured.

Example: As a resuit of an illegal sale of iiquorto X in the State of Minnesota, T, a passenger in the cardriven bv X in an intoxicated state, was hutt in an accidentthat occurred in the State of\nisconsin. Sued for tort byf in Minnesota, X moved to dismrss the case on the gtoundthat the accident happened in Wisconsin, the law of whiclrrequired that rvrongful act and the injuty should happenin the same State before the recoverv can be irad.

Held: To appiy Minnesota law to the case wouldbe more in conformiry wlth the princrples of equiry andjustrce since X'.s wrongful conduct was completed s'ithinN.&nnesota where X became intoxicated befote leavingsaid State and before going to Wisconsin rvrth T. Besides,the parties

"vere both lesidents of \4tnnesota whose law

dernanded a higher standard of conduct than that oF

Wisconsin rvl.rere the accident happened. (SclLnidt u DnlcollHotel. 249 Minn. 375, N. LV'. 2'/ 365 119a7iS

6. What are the conflicts rules on maritime torts?

(a) If thc tort is committed aboard a pubhc vessel, whether onthe high scas or rn foreign tcrritorial waters. tire law of tl-re flag rs the /rxio ti de li cf i cont n i.r.r i t.

(b) If thc tort ts committed aboard a private or merchant vessei

on the lrigh seas, thc larv of regisuv is the lex loti delicti commissii.

(c) lf trvo vcsscls c<-rl[de and are from the same state, the ]2w ofregistq is rhc l'.r /a,r r/c hilt ,rtmmit.rii.

(d) ll-tlrt' r't'ssc'ls come trom different states rvith identicallau's, appll s;ritl rtlctrttcrl linvs.

(c) ll- tlrc vcsst'ls cot::t' frotn different states urith di[ferent laws,tlre /r-v /oti rbhrtt tontntt.t.tu ls llt(: llcnerlrl maritimc law as understood and

CONFLICT OF LAWS TORTS 135

applied bv the forum wirere tl're case is rrled @aras, supra. p. 39.r. citingAmencan cases).

7. Is a foreign tort actionable, or may be the subject of an actionfor damages, in the Philippines?

(a) Yes, provided we acquire lurisdictron over the defendant(because an action for damages is an actron in penonam)and certainconditions are present, namely:

(1) The foreign tort musr nor be penal ln nafure;(2) The enforcement of the torrious habi[n, shouid nor con_

travene our public policy: and(3) Our judicial machinerv must be adequare for such

enforcement.

(b) Remembet, however, that while all procedurai matrers aregoverned bv the lex.fbi (.i.e., PhrJrppine law), since the case is hled here, alisubstantive matters are governed bv the lex lon dc/itli .rommzL.Lz7. Thus:

(1) The period of prescriprion of the action rs governed bythe kx loLi de licti nmmis.riibecause in Philippine larg prescripuon issubstantive, not merely procedural.

(2) The proper parties, the measure of damages, and thequestron whedrer d1e act complained of rs considered the proxrmatecause of the injury, are ali governed bv the lex loci delicti tommixij.

(3) The burden of proof and the defenses drat may be rnterposedby the defendant are aiso governed bv hx loti de/icti commnit.

(c) Example of a foreign tort actionable in the Philippines:X and I both Ftlipinos, were vacationing in Hongkong. One day, whiledriving a rented car, X ran over \'. rvho was walkrng. causing tl.re latter tobe hospitalized in Hongkong. Upon rhe rerurn of both to the Phiirppines,Y sued X for damages adsing from the rott commirted bv the latterwhile thev were in l{ongkong. Will tlie action prosper?

Yes, provided rt is hled within dre period prescribed by FlongkongIaw, dre lzx bci rhlicti tvmmhlii, since the penod of prescriptron is subsrantiveand not procedural. The kinds and measures of darrrages recoverable b1-

Y, and the defenses that X mat' put up, should also be governed bvHongkong law, which is rhe lex lott delicti commilsii. But all procedural marrershke the period for filtng the answer, the period for appeal. etc., sl-rould begoverned 6v rhe lex./ori. whrch is Phihppine law.

136 CONFLICT OF LAWS

8. What is thc Alit'rr 'lirrt Act, and do vou know if it has beenapplied in cast's lilctl lrr trilipinos in the United States?

(l) 'l'lrt' ,\lrcrr'lirlr Act ol the United States. which was enactedin 17U9, grants t I.S. tlsrrrcr courts original jurisdrctron over any civil acuonhled by ,rn alrcn lor a rorl commrtted in violation of the law of nationsor a lreah' r>f tlrc Unrted States.

(b) It was under the above law that the United States Court ofAppeals upheld the jurisdrction of the distnct court of Hawaii over a

class actron for damages filed by almost ten thousand Filipino victims ofhuman nghts abuses and tortw'e comrnitted bv dre iate President FerdinandMarcos and his ofhcials rn the Philippines during the Marcos reglme,resulung in a nearll US$2 briiion judgrnent in favor of the victims andf ortheir lrerrs (Tralano a. Marcot-Manotoc, / 25 LEd. 2d 661 , 17 3 S. Ct. 2958.

CONFLICT OF LAWS

CRIMES

1. Distinguish tort from crime.

(a) Whiie both tort and crime are wrongs, a tort violates pnvarerights u'hile a crime is committed against the State.

(b) Tort acuons are instituted by the mlured person against dre ttongdoerin a civii case the purpose of which is indemnifrcatron fcrr damagessuffeted; wirile crimes are prosecuted in the name of the State agarnst theoffender in crimirrai actions the purpose of which are the protection andvindication of the interests of the public as a whole, the punishment ofthe offender, the reformation of the offender, or to deter others tiomcommitting the same act.

(c) Torts are transitorv in character, so that the tortfeasor can bemade liable for his wrongful act in any furisdicuon where i-re mav befound. Crimes, on the other hand, are iocai and can be prosecute d onlv inthe places or states rvhere the crimes are committed.

2. How does the court determine whether a wrongful act is a tortor a crime?

The determination of whether a wrongful act is a tort or a cnmedepends on the charactenzation of the act in the state where said act iscommitted.

138 CRIMES CONFLICT OF LAWS

In thr'ltlrrlrpl)lll('s. ('('rtitlrl:lcts mal be both torts and crlmes.Under Art. 33 o{ tlrc ( tvrl ( .otlc ol'thc Philrppines. "rn cases of defamation.fraud. and phi'stc;rl lrrprrr('s. a ctli] actton for damages. enurelv separateand disdnct i'r'orrr tircl cltnrinal acrron, mal be brought bl t]re rniuredparw. Such civtl actron shall proceed independentlv of the crir'i'raiprosecutlon, ar-rcl shall recluire onlv a preponderance of evidence."

Take the ofienses classifed as "'criminal negligence" r.rnder Art.365 of the Revised Penal Code. They mav be ptosecuted as crimes bvthe State. On the odrer hand, the vrctims ma,v file separate actions fordamages against the offenders based on torts.

3. Vhat are the different theories that determine whether a stateor a legal system has jurisdiction to take cognizance of criminalcases?

(a) Territotial theory - Under this theorli the state whete thecrime was committed has juusdiction to tr\: the case, and its penal codeand the penalties prescribe therein rvili apply The teason is that theaggrreved state is dutl'bound to prosecute and punish the offender as hiscrime affects direcdt'and particularlv dre drgruq,, authoriq', and soverergnh'of the state w'here saici crime is committed.

'lhis theort mav be of two kinds:(1) The subjective, territorial principle - under which the

state wllere the crime was begun may prosecute the same, evenif it was complcted in another state.

(2) The objective territorial principle - under which thestate can prosecute crimes begun abroad but completed rvithinits territory.

fParas and authorities cited, supra, p. a0a)

(b) Nationalitv or personal theory - The countrv of whichthe criminal is a citizen or sub;ect has jurisdrcnon to tn'hrm for crimesallegedly cornmrtted b,v him, whetirer inside or outsi.de its tetritory,provided it is a crime under said countr,vh penal lau,.

(c) Protective theorv - Anv state whose nacionnl interestsmav be jeopardtzed has lurtsdictron over cnmrnal offenses. even ifcomrnitted outside its territorii and in some cases. even if committedbv an alien.

CONFLICT OF LAWS CRIMES 139

(d) Real or eclectic theorv _ Anv srare whose penai cociehas been transgtressed upon has jurisdrcuon to bring to iusuce tireperpetrators of the crime, whether the crime was commrtted rnsideor outside rts own terrttory. crimes under thrs theon'would rnciudepitacy, slavery', drug tratficking, imrnorai tmffic in women andchildren, etc.

G) Cosmopolitan or universality theory - Any statewhere the criminal is found or whicir has obtained custody over him,can trv him for the crime he has allegedly committed, unless exrradidonapphes.

(0 Passive personality, or passive nationality theory -The State of which the victim is a citzen or subject has jurisdiction toProsecute the offense.

(The above enumeration was taken from Paras, id., pp.403-406)

4. Which among the theories enumerated above, do we follow inthe Philippines?

In the PhiJrppines, we foliow as a genetal rule the territorial theorl',and by wav of exceptron, the protectrve theorl'.

.In other words. we cannot prosecute a cdme committed abroad(Like bigamy, rape, or murder) in the Philippines, because it is committedoutside our territorial jurisdicuon.

We also follow the rule o[ generaltrv in criminal lau'; i.e., al]persons, whether Fihpinos or aliens, are subject to our penal laws and canbe prosecuted ior theirviolauons (Art. 14. Civrl Code of thc Phihppines).

5. In what cases do we follow the protective theory, such thateven if the crime was committed outside our territorial jurisdic-tion, the crime is triable bv our courts?

Thev are the cascs tncntloned in Art. 2 c,rf thc l{evised l)cnalCode, lo wil:

"Except as provrded n thc treaties and laws of prei-crenna)

;rl)l )lt( ,rtr.tr. llr(' l)r()\'lsl()11s of this code sirall be enforced1.r .rl\' \r'lllrlr) lll(' l)hihpprne Archrpelago. including its:lilltr,s!)ll('t('. lts ll)tc:fl()r waters and maritrme zone but also

otllsltlt'tts lttrts<1tcuon, agzlnst those rvho -(l) Should commlt an offense \'"'hile on a Philippine

slltp ' rr arrshiPl(2) Sirould forge or counterieit anl'corn or currency

note of the Philipprne Islands or obiigations and secudties

issued bv the Government of the Philippine Island;(3) Should be liable for acts connected with the

introduction into these Islands of the obiigationsmendoned in the preceding numbers;

(4) \Xhile betrg offrcers or emplovees, shouid commitan offense in the exercise of their official functions; or

(5) Should commit any of the crimes againstnationai security and the law of nations"'

Examples of crrmes against tire iau' of nations are airPlane

hijaclung, piracl or mutlnv on the high seas, dtug trafFrcking'

6. Do we have jurisdiction over crimes committed on board a

foreign vessel if said vessel is within our tefritorial waters?

Tl'terc aretwo ti-reones that have generally been used, and which

our Supreme Court has appl-ted ln the old opium cases, in determining

this quesuon of iurisdtcuon; the Enghsh Rule (which emphasizes the

territorial principle) and the French Rule (wi-rrch stresses the nationality

theory).

(a) English Rule: The territory where the ctrme was

committed (in our problem . the Phiiippines) will have

iurisdiction excePt:

(a) In matters reiating to the internal order anddrscipline of the vessel; and

(b) Those which affect soleiy the ship and itsoccupants such as minor or petfv criminaloffenses committed bl' members of thecrerJ/.

(?aras. id., p. 410, citing Hyde, InternationalLaq Vol. I, p. 739)

CONruCTOFLAWS CRIMES 141

(b) French Rule: The stare whose flag is flown bv rhe vesseihas jurisdrction. excepr if the crtme affects rhe oeace.order, securiry', and safew of the territory. paras. rd., cttingBnedy, Law of Nauons. p. 180)

The above two rules were also cited andcompared by the Supreme Court rn the case of people t.lWongCheng,46 Phi/. 279, although rhe Court also held thatas we were at that time a tertitory of the United States, wefollow the English rule which was the one prevaihng in theUnited States. This case, however,'involved the crime oismoking opium in a forergn vessel anchored rn ManilaBay, which the High Court held was a breach of our pub-lic order because ofthe pernicrous effects that ir producedin our terdtory. In shott, dre Suprerne Court actualiv appliedthe French rule to the case, not the English Rule.Nonetheless, as observed by the lateJustice Paras in hisbook rn Confhct of Laws, "the difference between thetwo rules is largely academrc and theoretical, the two rulesbeing essentially the same. Thus, if aboard a Germanship anchored in Maniia Bay, the crime of murder iscommitted, under the English rule, the Philtppines wouldhave junsdiction in view of the general rule. Under theFrench theory, the Phiiippines would also have iurisdicuonunder the exception, for the crime indeed affects the peaceand secudty of the territory, \X4rether we follow, therefore,the English or French rule on the matter is not signihcant:The effect is the same". (?aras, supra, pp. a10-a11)

7. Did the United Nations Convention on the Law of the Seachange the above rules?

Art.27 ofsaid Convention pardy provides:

"Criminal jurisdiction on board a foreign ship

1. The criminal junschcuon of thc coastal State shouldnot be exercised on board a forergn ship passrng through theterritorial sea to arrest any person or to conduct any rrvesugationin connection with a crime committed on board the shrrp during

CONFLICTOFLAWS140 cRlMlrs

142 CRIMES CONFLICTOFLAWS

its passage, save onlv in the following cases:

(a) If the consequences of the crime extend to thecoastal State;

(b) If the cnme is of a krnd to disturb the peace of thecountry or the good order of the territoriai sea;

In short, under the rules of said Convention Philippinecourts do not acquire jurisdiction over cdmes commrtted on board a

foreign vessel even if it is within our territorial waters as long as the effectof such cdme does not disturb our Peace and order. Th,rs is similar to the

Ftench rule to the effect that we have no iurisdiction over ctimescommitted aboard foreign vessels even if they are found within ourterritorial waters except when the crimes affect the peace, order, securiryand safety of our countty and territory.

CONFLICT OF LAWS

BUSINESS ASSOCIATIONSA. CORPORATIONS

1. How do you define a "corporation"?

A corporation, accotding to Sec. , of the Corporation Code offie Phihppines, "is an artihcial belrg created bl the operation of las',having the right of succession and the powers, attributes, and properuescxpressly authorized bv law or incident to its existence", rvl-riie Section123, ol the same Code, defines a foreign corporation as "one formed.c+'ganrzed or existing under any lar:,'s other than those of the Phtlipprnesand whose laws ailou,'Fil-ipino citizens and corporations to do busi.ness inits own countrv or state".

2. What are the different theories in determining the personal orgoverning law of a corporation?

There are at ic^st three (3) theories, namely

(1) The theory that the personal law is the law of theplace of itlcorporation:

Under this theory, horvcver. l corporati<rn carr cvaclc rnaulresponsibilitres bv simply orgrnizing irr onc st;rlc and perfbnnrngits ftrnctions in anotlrer staf e.

CHAPTER

Iu

144 BUSINI Ss A\\( )t l/\ ll( )N5 CONFLICT OF LAWS

(2) 'l'lr tlrt.orv of the place or center of management:

( )rrc tlrllrtrrltv of thrs theoq'rs tl-rat tire board mav meet intlrllclt'rrl st;rtt.s, ulthough ti-us defect mal be cured bl expresslvpt,,r'ttltttl' rrr tlrc articles of ilcorporaUon ot bv-iaws w]rere tireprtrrctp;rl n)('cur)g place of the board is.

(3) 'l'he theory of the place of exploitation

-l'l.re de fect of this theory is that the corporation may have

its enterprise scattered all over the rvorld. Besides, the physicalacts of thc corporation are not as unportant as the decisionsreachcd bv rts board oF directors.

(Paras, supra, and authorities cited, pp.420-421).

3. Among the foregoing three theories, what theor-v do wefollow in the Philippines?

in tlre Phrlippines, we follou,' the theorv of the place ofincorporation.

This is rmphed from the deFrnrtion of a foreign corporation byour Corporauon Code as "one formed, organized or existtng under anylar.vs other than those of the Philippines x x x". In other words, if thecorporadon

"r'as organized rr the Philippines, it is a Phrlpprne or domestic

corporation; if organized elsewhere or abroad. it is a fotergn corporation.

4. Vhat about the domicile of a corporation? Where is it?

According to Article 51 of the Ner.v Civil Code, "When the larvcreating or rccognizing them, or anv otirer provision does not F1x thedomicilc of jr-rndrcal persons, the same shall be understood to be theplace whcrc tlrcrr legal representation is estabiished or where thev exercisedreir pnncipal hrnctions."

l'.r,crr l tk'li.cttvclv organizcd corporation which the lau'regardsas de.falo ursofar 1rs lnll()c(.nt third persons are concerned can possess adomicilc ftrr tls r/r //.r,/, ('xlst(.ncc (Mal)onald zr FN'CBAI', L-7991 , Majt27. / 95().

coNFLIcr oF LAWS BustNESs ASsoctATIoNS l4.s

For the purpose of determrnrng a corporanon,.s domrcile. Sec.14 of tl-re corporauon Code requrre. ,rrn, ,i," arilcles of rncorp.ration.f n phrirppinc corp( )rauo, ,)Lrsr srare ,n. rrio.. ,"lr"r; ,;. ;;;;",:;;.of the corporation is to be estabrrsireci or lc,cated. ..whicrr piace must bewithrn the Phiirppines". Thus, the place of incr

corporatlon rs also its domicile. )rPoralon of a PhrJrppine

As for a foreign corporation that has been granted a jtcense t<;operare or r() do busrness rn the phi,rppines, it o.quo., ao*r.rr. i., ,rri,countrv by vrrrue ol said license. As heid bi, the Suprem " Coun in C*)i*lr.;s6i4 1 s, a. Mirt aa t,,. S t.r / enr. l n t.. l g 9 S Cll I O J t' (t ;;rl ;"';'JJJ::1.fre,rule.requiri"g foreig.r corporatlons ro secure a rrcense to do businessin the PhrJrppines is to enabrc the courts ro exercise jurisdiction ,";;;;or the regulatron of tl-reir activitres rn our counff\,.

5. Vhal are the exceptions to the theory that the personal law orthe nationality .f a coqporation fotows the place of its incoqporation?

The exceptions are:

(a) For constitutional purposes, even rl ^ corporauon wasincorporated in the phiJrppines. it ."r.no, exproit or d.-relop o.,, ,r^,..rr"'fesources nor operate pubhc urrhties unress 6070 0f the capriai is Firiprnoowned (Art. XII, secs. 2, 10-11, 19g7 Consurutron)

(b) For wartime purposes, we adopt rhe control test; i.e.. wepierce .the 'eil of coryorate rdentin. and go lrrto t1.,. "^"";;

';;;;controlJrng stockholders to deter'rinc *l-retrrer a corporauon is an enem',corporarion.

Thus, a German_controlled corporation, even iiincotporated in the pl-riJippines, was considered an coemr.corporaflon during the last Wbrld War for the purpose of freezrngits assers (Dauid Winethop u phil. Tnul. L_)g69. /an. 3/ , 195?).

The doctrine oi pierciog the corporate veii ordrsregarding tie corporate fictt<_in also permrts the courts r<rlmpose personal riabilrn, on the stockholdcrs if the c'rporadonform has been used_ ro defeat the pubhc ..,nlr",rr"r.", lurtif,wrongs, or protcct fraud or crtme (.l.art lJoon Bet anrl Lo. u..i.

Jarencio, I 61 .\Ck,1 205).

l.16 BL5l\l 55 ,\55(,L1,\llOi\5 CONFLICI'OF I ,\\VS

6. Vhat matteis are governed bv the personal law of the corporation?

'I'hc pc,rsonll lau' of tire corporati()n (rvhrch. rn thc Phihppines. istire placc ()l rnc()rp()ra[on) governs the tequisttcs for t]re formation oftire corporatt<)n. thc reclulr'ed nurnber of mcorporators and tire members,.,f ti.re floard of I)trectors. the kincls of shares of stock aliowed, thctransfer ()[ stocks in a rval tl-rat it wr>uld be bindrng on ti-rc corporation.the rssuance, aln()unt and legahw of tirc diviclends, and the powers tnclduues of the offtcers. stockholders, and mernbers.

7. ttr(/hat law determines the validity of corporate acts and contracts?

T'he vahditl of corporate acts and contracts is determined br'tl.rc lav of the placc of incorporation and bv the larv of the place ofpertormance. To be vahd and binding, such acts or contracts must bcauthorized bv both larvs. If valid in the place of incorporation but voidin tlre place o[ performance, or atce uer.ra, the vahdiq' of said acts orcontracts is doubtlul and it mav not be griven effect at all, without prejudiccto the principle oi estoppel (Sec. 119, Corporatton Code; Paras, supra,and authorities cited, p. a29).

8. May a foreign corporation sue and be sued in the Philippines?

Yes, if it has the necessarv hcense to do business here (Sec. 123.Corporation Codc). The license is required not to forbid the foreigncorporation from perfolnng single acts but to prevent it flrorn acquiring a

domicile for purposes of business u'ithout takrng the steps necessanr torender it amenable to suit in the local crsutts (hIarcltall W'e 1l.r d:" Co. u. E/vrCu.. 16 l'hti. -11

'Iiansacting ol dorng business connotes a continuity of businessdcalings and arrangemenrs (Mentholulum Co. u. EllerCo..72 Phil. 521).

llvcn a single rct or transaction ma); however, l;e an act of<>rdinalv l>ursiness o[ the corporation if it is not merell incidental orczisual blrt of srrcir charactcr as to drsunctlv indrcate n purpose to dc-, otherl>usincss rr tlr(' statc and to make the state a base of operations for thcconduct ol' a part of tlre forcign corporation's ordinan' business ( R;rI '.r.sl Jnlrrntltontl lml,rnl tnJ [\Vorr Corporalion

"'. Nankai Kogyo Co., Lld., L

lli2l. \ot'. 10. l()6:'\.

BUSINESS ASSOCIATIONS I47

9. How may our coufts acquire jurisdiction over a foreign corporationdoing business in the Philippines?

Bl service of sumrrons on:(a) rts resrdenr agent designated in accordance wirh ra*,for

r hat purpose;(b) If no such agent, on rhe governrnent official desrgnatedby law ro thar effect; or(c) On any of its officers or agents within the philipprnes.

(Sec. 12, Rule 14. 1997 Rules on Civil I'rocedurej.

10. suppose a foreign corporation transacts business without first,btaining the necessary license, what is the status of its contract?

The conrract is unenforeceable; i.e.. the corporation cannor sue in, )ur courts until the necessaq' license is obtained. After the issuance of tirelicense, suits mav be instiruted even on the pre-license contrzcts which areconsidered vahd ( Marrhell-lV,e/h s, Co. 1,. hher Co., tupre.

But the person who contracted with the corporation may beconsidered in estoppel if ire had received benefits from the ..rnr.n.,;lrietcher, vol. I, cvclopedia of Law of pr-ivate corporations, sec. g520).

11. May a person sue a foreign corporation that transacted businessrvith him without a license?

Yes, because the corporation cannot put rrp by way of defensetts own failure to comply with the lauz (Gen. Cor. of the phi/. I/. (J nion In.r.\ode! of' Canton, 48 OG #1 , Jan. 1952, p. 7). But rhe court must be abieto acquire jurisdiction over the corporadon.

12' If the corporation sells its products in the philippines throughan agent, is that doing business here?

If the forergn corporation sells its products in the phihppinesrhrough a resident rnerchant on commrssion basis. it is rhe merchan,. .r.r,the corporation, thar is doing business here. But if the foreign corpora-tion sells its goods in the Philippines througrr an cxclusive ;istnbuungagent, it is doing business here, because thc agent is acung onl'in behaiioi its princrpal (Mentholatan (.0. t'. Man,p!/inaz, supra).

l{E BUSINESS ASll(r('lAl loNS CONfLICTOFLAWS

lit. May a forcign corporation not doing business in the Philip-pines euc?

Ycs. tn (a) rsolated transactrons;(b; to protect its reputation, corporare nam{and goodwilt

Thus, a foreign corporatioa can ask a local couttto restrain some Filipinos from organizing a localcorpontion with the same name and the same business(lYestern Equipnent Supp! Co. a. Rga, 5l Phil. I l r,provided a similar pnvilege is granted to Philippinecorporations by the plaintiff's home state (Sec. 3,Rep. Act 8293).

(c) for infringement of trademark or rade-name,unfair competition or false description of products, andinfringement of patent (Sec. 160, id.).

14. What about mul 'national or transnational corporations, whatlaw applies to them?

These ate actually branches of a big, mother corporation in ahfttrly industroli"ed, hrghly developed foreign country but doing businessin many countries of the world through branches that have beenincorporated under the law of each country .or state where it hasextended its business, in association with local businessmen. Since theyare incolporated under the local law of each state rvhere they are doingbusiness, the branches are sE)arate entities govemed by the said locallaws, but in reality, the major decisions in their operation and managementare controlled by theit mother or parent corporation. However, thebranches, having incoqporated in the states where they are established, aregovemed by the intemal law of the said states, and their personal laws arethe local laws of the host states.

15. May a foreign corporation be sued after it had already with-drawn from busineee in the Philippines?

Ye s, on contracts previously entered into by it. After all, fairnessdemands that the citizens and residents of the Philippines be affotded theopportunity to sue thcse foreign corporations locally, instead of requiringthem to sue in thc foreign countries where they are domiciled. By thesame token, thc f<rrcign corporation that has with&awn should also be

coNrLIcroFLAwa "usINEss AssocIATIoNs teg

allowed to sue on ,

the cessation ""'- l1'11lt""ln'.1lif#:T:.""1 €ntered into ptevious toto contracrs entered into p'or to the

enhcal rule should also applycorporatronis rrcense. 6norur, ,rpr^. ;d;;;:'-::."t1on. of the forergn

ronues cited, p. 43g).

B. PARTNERSHIPS

1. Vhen does a partnership exist?

.1 partnershrp exists when two or more Ders^nc l-;_ r -rto contnbute money, properff or indus,,v ,,"tPttton'

bind themselves

"?'il$ffi il"1i ; ;i' p;#' ;;;ffi ;;:T"::(TT? #:3#* i::

3; l_r.j;!"rtnership, like a corporation, have juridic al pers onatity

ln the phrhpprles. les.

a parrnership .,has a.;urichcal personaliryseparare and distinct from that .o.1, of the iartners,, (Art. 176g, id.).However, in the United States rnd sorne countries in Europeand Latin America, parrnerships are nor ,"g.i.a ;, ;:;.;i.."r r"Xl;.with ju.drcal pcrsonalitie. of tlr.r, .rw-i-.i..', For the purpose oftnscrlverrcl proceedings (Sce Canpo., t\r,r,ao jJ'Co. t: puc. Cont. Co. 14 phil.91 6). However. in the ,T,."0 Sor.J .a^, , n.-_ ,r_.1. has been developed,getting away from dre old common i;;;;;p""n rhar a partnershio rssimply an aggregate of individuar,. ;";;;rr* treating ir ^, o ,.porrr.end& distlnct from the partners.

3. Vhat is the personal or governing law of a partnership?

IJke Ph'ippine colporatl.ns, trre personar or governing raw of apartnership is the law of the countn'#;."; is creared (See Art. 15Code of Commerce).

Thus, marrers iike organiza,.ron, caDacino f its con tra ct., tr., " r.,n uirrn, ;?;il; ;.i; l;:i ;jffi:: ::':,:Xf.:persons, dissolution and wrndrng rp.

^,. ^ttgnl,*n".1 lr.,, thc partnership,.spersonal law or the taw of t1.," ,,oi" *h";:; ;;, crcated.

For example. in a New \brk case wl:ere a limited partner under

CONTLIC-I OF LAWS150 llllslNl 'rr'. Atrrrl rl lA lll lNrt

(.rrlr;rrr l,ru, \\',r1, ru('{l tlr l'.1('\r Yrttl' tot lllcach of contrlrct entefed lnto b\

tlrc ( rrl,.nr l),nlnr'r',lrt1, ttr l'Jt's'\irlh .l1 vils irelcl that the liurtted partner

wa:, ilr)l lt,rl,l, ,rtr,l llr,rl l\t lr \'"tli l'ltu'c()Llld n()t enl;rrge thc liabihn'oi-

a hililtt rl lt,rt ltl('l llll(l( l ( .ttl>rltr lalv sll)IPII bccause tht contfact \t'il:

clrt( f'( (l f ttl,, trt Nt's \ "rli (irrrlq t'' \''trrju' 6t N)- 2a 187 '\'S'

4. Whcrc is thc tlomicile of a partnership?

tlrrtlcr,'\rticle 5l of the Nerv Civil Code' the domicile t-:f

p^rtncI'sl)ll)s ()r:ganlzcd under Phdippine iarv is' Iike dornesnc cor?orauons':,tl_,. pl^.., rvhcre their legal representation is estabhshed of vhcre thel

cxercisc their princrpal funcuons"'

C)onsequently' a Partnership created in one state but rvhicl.r

conclucts its main business in another state n1a' be considcred domiciled

rn tlle latlel state

5. Are the constitutional limitations on the Powers of corporations

also applicable to PartnershiPs?

Yes, so that unless at least 609'i' of tl're capital of a partnersirip is

owned bv Fihpinos' tl-re partnersl-rip cannot engage tn the development

and exploitatron of our naturai resourccs' nor operate public utilitres'

Netthet can a partnershtp 600''o of thc caprtal of rvhich is not owned

b-v Filiputos o.q,rir. bv putcirase or otherrvrse agricultural lancls in the

Philipprnes.

Forergn partnerships may be mortgagees of land rn the Philtppincs

for 5 vcars, rer"re*nbl. for another 5 )'tn"' but tirey callnot acquire said

iand rn a foreclosure proceeding (l{ep' Act No 133)'

6. If a PhilipPine court appoints a receiver for a foreign Partnershipin the PhilipPines' does the receiver also act as such with respect

to assets of said partnership in its home state?

Ntl.lxcntlsctlrc.ar.rtlrolttl'oItlrcrcceir,erison]r.wrdrintlreterrit<>rialboriDdarit,. rrl'tht' l)lrrlrpPln('s, or co-cxtensive vitl-r the ir.rrisdiction of tlre

court that irpPorr-rtctl lrirtr'

CONFLICT OF LAWS

RECOGNITION A}{D ENFORCEMENTOF FOREIGN JUDGMENTS

1. What are the reasons for the recognition and enforcement offoreign iudgments bv the forum?

The teasons are basicailr- thc sar:re as recognitton by thc forurnof tire proper foreign lawl and thc exceptions to the apphcauon of theproper forergn law or comin'are also appltcable to foreign judgments.

2. Distinguish enforcement from recognition of foreign iudgments.

(a) Enforcement means that the plaintrff or petitloner wanrs thecourt to p<-rsitrvelv carr\,' out and make effective the foreign judgment.',vhiie recognition rneans that the defendant or respondent is presentingthe foreign judgment merelv as a defense, on the basis of ru judicata.

(b) Enforcernent implies an act of soverergr)t\': rcc(,gnlu()n il)-volves merelv a sense of iustice (Perkin t'. Ilenpae/ C,onrolitktd hlintng(.0..L-|981-82, May 28, 1951).

(c) Enforcement reguues a scpar:rtu acuon ()l procecdir,g brouglrtpreciselv fo make tirc fcrreign judgnrcr.rt cffccuvc: rcc<>gnition, berng a

matter o[ defense, necds no ^cti()n ()r pr'occcriinu but imphes that an

action or proceeding has alrcadt' becn hled ^galnst

tire defcndant rvho isinvokrng the frrreign iudgment.

152 l{l;( (,(;Nt I l(lN ANI) llNt'()I{CFIMENT()t, troRt,t( ;N ll tl t(;MliN'l's

(tl) l,.rrtof ( (.il1(.il1 c?tnnot extst rvithout recognluor], v'htie recog-

nllt()r (l()(:' llol ll('( (l or tltrt's not tequlre etlforcement'

l',xirlrr;rlt: of tecognition: An Americarl presents a forergn decree

oi clrr,,rt t :rs :r tltictrse in a case for btgarnv zgalnst him rn the

l)hih111rtrrt's.

lixampleofenforcement:AFitipirrawhoi-radbeendir'orcedbv hcr alicn husband under Art' 26 of the Familv Code and who rvas

cle,lcd bv the iocal civil regrstrar a rnarriage license for hct to be able to

n-rarrv agaln, hles an actlon with the proper: court to cornpel said official

to issue to her a marriage license on thc basis of the divorce decree

obtarned from.her l:v her alien husband'

3.Forwhatreasonorreasonsm^v^localcourtinthePhilippinesrefus€ to recognize or enforce a foreign iudgment?

(a) The requisite proof of the forergn judgment mav not have

becn prcsented.Tire tnanner of ptovlng a foreign iudgrnent is the

samc 2s proving a foretpp J211' (I{ule 1i?' sec' 25' Revised

Rules of Court)'

(b) The foreiEn iudgment rlav conravene 2 recognized and

cstablishecl policv in oul country.An exampie is a foreign decree o[ drvorce obtarned

bv a l;iliptno from iris Fiirpino "r"rfe

abroad; oI a foreignjrrclgrr.rent awardrng thc custodl o[ a babv to t]rc Filipinof irthcr'. not to thc Filipino motirer'

(t.) 'l'lrc irtlrrilrrtslr.irtton o[iusticc in the countn v.there the foreign

lrrrillnrcrrt ( lttll(' ll()lll ttt;tY lrt' shockrngly corrupt or not beyond

rt'1 I rr ,,tt-l t

rl,r't' l);tul.. srrllrlr. 11. 75)

4. whar irfc tltc (.r,n(litir,trr .rf r..(luifr:mctrts bcfore a local court inthe PlrilipprlrrI ('lll ettftrrt'r ot tt't'ttgtrizt t firrcign iudgment?

(:r I lltllr ttrtt',t l" 'trlt'r1tt,rlt' pirrol ol tlrc lirrcttl-t judgment'(l,l Ilr, ;,t,l1,tlt,lll lllllnl ltt "ll;tt11'11 rrl t"ttttltt'tctal matl(:r' n()t

CONFLICT OF LAWS RECOGNITIONANDENFORCEMENT 153oF FORETGNTUDGMENTS

on a criminal! revenue, or administauve lnatter.

(c) There must be no lack of iurisdicuon. no wanr of nouce. nocollusion. no clear mistake of larv or fact I Ruie 39, sec. 48. 1997 Rules onCivil Procedure).

(d) The foreign iudgment lnust not conraveoe a sound andestablished public po[cv of the forurn.

(e) The judg'rnent must be ret.iudirata; i.e.. the judgment must bcfinal; dre foreign court must have iurisdicuon over the subject marter andthe partres; the judgrne nt rnust be on the rnerits; and tllere was idennn' ofpartres, subject lnatter, and cause of actron.

5. $/hat exactly do the 1997 Rules of Civil Procedure provide onthe effects of foreign iudgments in the Philippines?

Sec. -18, Rule 39, 1997 Rules on Crvil Procedr.rrc provrdes:

"Tl're effect of a iudgment or Final order of a tribunaloi a forergl countr\", having jurisdicuon to rendcr thejudgment or final order, is as folkrv,s:

(a) In case of a judgn.rent <.rr tlnal ordcr upon a

speciiic thing, the iudgment or hnrl order is conclusiveupon the trtle to the tlring; and

(b) In case of a judgrnent or Ftnal ordcr against a

person, the judgment or final order is presumptivc

:;:*::,:,:T':,LT. :"-:"* "'H, :li""" an d'lhe ir

In eithcr .n.", al-,. judgmcnt or final r>rcler marbe repcllcd bt' evidence of a waut <-l[ jurisdicriolr, \r'anloi notice to tire par6,, collusion, fraud. or clear nristak<of larv or fact".

6. \$[ihat are the differences between the effects of a final iudgmentor ordCr under the above rule, and the cffects of such iudgment ororder under the former Sec. 50 of Rulc 39 of thc llevised Rules t,l'Court, which the foregoing Rule in tlre 1997 Rulcs of Civil Procc'dure amended?

CONFLICT OF LAWS

(a) Under thc forrner Sec, 50 of Rule 39 of the ltevrscd Rules ol

t54 It'r t't.NllllrNANlrlN]l|Xr ]MFNt(lt lr lll ll(,t{ ll rl il.Ml!N I Er oNt't tt I ([,I Aw\

(.(llill ,r I'rt{ l,rtt lrtrllrltlr ltl tfl rtt4 (t i ,l lilrllrtil(il1 'rl ,r lrrt(.tptt ( Qlltl illroil?l sl)('( rltr lltttr!'t rt,,r', rrltr,r,lt , lil'rlrlrtt rl r ililr lilrit\,( illxrtl llt(. ltllr. to tlr<.tlltttt'. lr',rtlltt1, 11 1, Irttr,ltttl!, itfrttttt,,t tlrr rvlt,,lr r,r,,,rlrl, lrr,rvtrl<'<l lltr.lrrr('1l1lt ( (,ult lr.rrl lrtttrrltr llIl| lo lrtr)tilrililr r' ,r,il(l lil(ll'ilrrttl

lltrtlrt scr. ,lll. lLulc 1(), ol tlrc l()()/ l{rrlt.:, orr (,tvtl l)ror-t:tlufc,ltou,t'r''r'r. itll ;rrtl1|ttcltls (,t ()t'(l('rs ol lor<'t1'rr ( oulli\, wllt'llrcr rn rcn ot itlPenonutt, ilr(' c()nsidrrccl rncrclv fnrnil filtr( ( )r l)r('sunll)lrv(. cvrclcncc of a

right bctwcr:n the partrcs at)d th('rr su(( cssr)ts ut ult('r('st Iry a subse<1ucntude, arrd both kinds of ;udgmcnts,rr('riul)l('('t to tlrc tlrlcnscs of want o[jurisdrction on tbe part of thc foru:r11r c()rrrt. w,ult o1'notrcc to the defen-dant or respondent, collusion, fratrrl or t:lt:ar rlrstake of law or [act.

@) The formcr Scc. 50 of Rr.rlc 39 of the Revised Rules ofCourt covered only final judgments. Sec. 48, Rule 39, of the 1997 Ruleson Civil Procedure, includes final orders. Both, however, must complywith the rules on hnahry of judgments or orders; i.e., the ruies of rer

.fad.tcata.

**************)k*

A qn[' 'rj'"':?slw', i. ,r i, l"

CABAIAIUAN CIIY