Philippine Conflict of Law Philippine Private International Law  Conflict of Laws is that part of the municipal law of a state

e which directs its courts and administrative agencies, when confronted with a legal problem involving a foreign element, whether or not they should apply a foreign law or laws. Elements: a. It is part of the municipal law of a state; b. There is a directive to courts and administrative agencies; c. There is a legal problem involving a foreign element; and d. There is either an application or nonapplication of a foreign law or laws.  Since every state has its own municipal law, it follows quite naturally that each state has also its own conflict of laws.  It is part of the municipal law, NOT international in character.  It is the judicial tribunals of a country that ultimately are called upon to decide or resolve conflicts problems; while administrative agencies also decide preliminarily a given controversy involving a foreign factor.  A foreign element has to be present before the matter can be considered a conflict problem. Thus, if the transaction in question arises wholly within a single state, all the parties interested having been, and continuing to be, domiciled and actually present there, and all nationals of the very same state, the question being raised there also, no foreign element exists to cause any interference with the usual and regular enforcement of the domestic municipal law by the domestic tribunals.  When effect is given to a foreign law in any territory, it is only because the municipal law of that state temporarily abdicates its supreme authority in favor of the foreign law, which for the time being, with reference to that particular matter, becomes itself, by will of that state, its municipal law. Importance of Conflict of Laws: 1. To adjust conflicting rights in international, mercantile and corporation transactions; and 2. To solve personal, family, property, and successional, contractual problems, possessed of facts or elements operating in two or more states. Cause for Conflicts Problems  Variance in the municipal law of the countries involved.  Different municipal laws may give identical laws varying interprestations. Scope of Functions of Conflict of Laws a. The determination of which country has jurisdiction b. The applicability to a particular case of either the local or the foreign law

c. The determination of the force, validity and effectiveness of a foreign judgment How Conflict of Laws is observed 1. States may observe conflict of laws by complying faithfully with its own conflict rules. But States must, insofar as is practicable, try to harmonize their own rules of equity with the legislation and jurisprudence of other lands. 2. Private individuals may in their own way abide by our conflicts rules by observing them and by complying with judicial decisions on the subject. Why Conflict of Laws is observed 1. It is part of the municipal law of the state 2. Individual citizens has fear of municipal sanctions Names given to the subject  Private International Law  International Private Law  Civil International Law  Extraterritorial Law  Private Law of Nations  Private Law of Foreigners  The Extraterritorial Recognition of Rights  The Law of Strangers  The Theory of the Extraterritorial Authority of Laws  Conflict of Laws Conflict of Laws (Private) vs. Law of Nations (Public)

Nature Persons Involved Transactions Involved Remedies or Sanctions

Conflict of Laws Municipal Private Individuals Private ones between private individuals Resort to municipal tribunals

Law of Nations International Sovereign States Generally affect public interest Peaceful such as negotiations, good offices, mediation, conciliation, arbitration, and the likes; or Forcible such as embargo, boycott, war, and the likes

Sources of Conflict of Laws 1. Indirect a. Natural Moral Law -rule of human conduct implanted by God in our nature and in our conscience, urging us to do whatever is right and avoid whatever is evil. b. Works of Writers -legal scholars are considered sources of Conflict of Laws insofar as their

writings have influenced judicial decisions on the subject. 2. Direct a. Constitutions -the fundamental law of the land. b. Codifications -Civil Code of the Philippines & Philippine Code of Commerce. c. Special Laws -Corporation Code, Insurance Act, Patent Law, PD on Intellectual Property, Nationalization of the Retail Trade Acvt, Omnibus Investment Code, Foreign Investment Act, and Central Bank Act. d. Treaties and Conventions -European Hague Conventions of 1896, 1902 and 1905, Geneva Conventions of 1823, 1926, 1930 and 1931, Treaties of Montevideo of 1899, and Codigo Bustamante of 1898. e. Judicial Decisions -Judicial Decisions, though not laws, are indeed evidence of what the laws mean. f. International Customs -lex situs (law of the place where the property is situated), lex loci celebrationis (law of the place of celebration), lex nationalii/lex domicilii (national law or domiciliary law), territoriality (where the crime is committed) or generality (criminal laws of a country bind both the citizens and aliens who are in the said country or territory except the principles of public international law and presence of treaty stipulations). Jurisdiction  In general, it is the authority of a tribunal to hear and decide a case. It also includes the power to enforce any judgment it may render.  In Conflict of Laws, it is the power of the state to create legal interest which other states will recognize and enforce. y It is usually the law of the forum that furnishes the yardstick for the presence or absence of jurisdiction. When a court has no jurisdiction, it has no alternative except to dismiss the case. Any judgment rendered without or in excess of jurisdiction is clearly null and void even in the state that rendered it, in view of the lack of due process. When a tribunal possesses jurisdiction, it may (1) refuse to assume jurisdiction on the ground of forum non conveniens; or (2) assume jurisdiction, in which case it may either apply lex fori (law of forum)or lex causae (proper foreign law)

-It is conferred by law and is defined as the authority of a court to hear and decide cases of the general class to which the proceedings in question belong. b. Jurisdiction over the person -It is the power of a court to render a judgment that will be binding on the parties involved. Jurisdiction over the plaintiff is acquired from the moment he institutes the action by the proper pleading; while jurisdiction over the defendant is acquired through voluntary appearance or personal/substituted service of summons. c. Jurisdiction over the res -It is the jurisdiction over the particular subject matter in controversy, regardless of the persons who may be interested thereon. How Service is made on a private foreign corporation?  To the resident agent if doing business in the Philippines or to the government official designated by law to that effect or any of its officer or agents within the Philippines. Effect of vitiated personal service of summons a. Vitiated by fraud -if initiated by the plaintiff, the court does not acquire jurisdiction over the defendant; if initiated NOT by the plaintiff, the court acquires jurisdiction. b. Vitiated by force -if force is legal, court acquires jurisdiction; if force is illegal, court does not acquire jurisdiction. y Repercussions of Submission to Jurisdiction: o On the part of the plaintiff, he is subject to any set-offs, counterclaims, crossclaims, etc. that the forum may provide as proper elements of defense o On the part of the defendant, he is subject to all subsequent matters in the same suit, such as appeals. Continuing Jurisdiction even if the defendant leaves o Even if the defendant leaves the state of the forum prior to the final determination of the suits, the jurisdiction over him that had been previously acquired continues.

Kinds of Jurisdiction a. Jurisdiction over the subject matter

Reason for refusal to assume jurisdiction  Inconvenient to the forum (forum non conveniens): a. The evidence and witnesses may be not be readily available; b. The court dockets of the forum may already be clogged and to permit additional cases would inevitable hamper the speedy administration of justice; c. The evils of forum shopping ought to be curbed; d. The forum has no particular interest in the case;

e. Other courts are open. Certainly, the case may be better tried is said courts. Application of Internal or Domestic Law  3 instances to apply internal or domestic law: a. When the law of the forum expressly so provides in its conflicts rules; (Our civil code cites certain instances when our courts in resolving conflict problems have no course except to apply our own internal law) b. When the proper foreign law has not been properly pleaded and proved; (There is no judicial notice of any foreign law; thus, it must be properly pleaded and proved as a fact.) *Proof of foreign law: WRITTEN LAW (1) an official publication thereof; or (2) by a copy attested by the officer having legal custody of the record, or by his deputy, and accompanied with a certificate that such officer has custody. UNWRITTEN LAW (1) the oral testimony of expert witnesses; or (2) by printed and published books of reports of decisions of the country involved, if proved to be commonly admitted in such courts. *a foreign law that has been duly pleaded and proved in our courts of justice must receive the same interpretation given to said law by the foreign tribunals concerned except if somewhere in our laws we find a statute worded identically, we cannot be blamed is we disregard the foreign interpretation and instead use our own previous interpretation of the same. c. When the case involves any of the exceptions to the application of the proper foreign law: a. When the foreign law, judgment, or contract is contrary to a sound and established public policy of the forum; b. When the foreign law, judgment, or contract is contrary to almost universally conceded principles of morality; c. When the foreign law, judgment, or contract involves procedural matters; d. When the case involves penal laws, contracts, judgments; e. When the case involves purely fiscal or administrative matters; f. When the application of the foreign law, judgment, or contract, may work undeniable injustice to the citizens or residents of the forum; g. When the application of the foreign law, judgment, or contract, may work against the vital interests and

national security of the state of the forum; h. When the case involves real or personal property situated in the forum. Theories on why the foreign law may in some cases be given effect 1. Theory on Comity We apply foreign law because of its convenience, and because we want to give protection to our citizens, residents and transients in our land.  Kinds of Comity: a. Based on reciprocity if the laws and judgments of the forum are recognized in a foreign state, the forum in turn will recognize the laws and judgments emanating from said foreign state. b. Based on persuasiveness of a foreign judgment if the forum is persuaded that a foreign judgment is meritorious and has been rendered by a court of competent jurisdiction, it will not hesitate to enforce that foreign judgment in the forum even if the foreign forum does not reciprocate. 2. Theory on vested rights We seek to enforce not the foreign law or the foreign judgment itself, but simply the vested rights that have been vested under such foreign law or judgment.  Basis of theory: Principle of territoriality a judge cannot directly recognize or sanction foreign law and judgments, it is his own territorial law which must exclusively govern all problems demanding his decision. 3. Theory of Local law We apply foreign law not because it is foreign, but because our own rules applying similar rules require us to do so; hence, it is as if the foreign law has become part and parcel of our own local law. 4. Theory of Harmony of Laws We have to apply foreign law so that wherever a case is decided, that is, irrespective of the forum, the solution should approximately be the same; thus, identical or similar problems must have identical or similar solutions anywhere. 5. Theory of Justice The purpose of all laws, including Conflicts of Laws, is the dispensing of justice; if this can be attained in many cases by applying the proper foreign law, we must do so. Recognition and enforcement of foreign law distinguished  Recognition means that our courts will allow said foreign judgment to be presented as a defense to a local litigation; Enforcement when a plaintiff wants the courts to positively carry out and make effective in the Philippines a foreign judgment.  Recognition involves merely the sense of justice; Enforcement virtually implies a direct act of sovereignty.

 Recognition does not require either action or a special proceeding; Enforcement necessitates a separate action or proceeding brought precisely to make the foreign judgment effective.  Recognition may exist without enforcement; Enforcement necessarily carries with its recognition. Reason why not all foreign judgments can be recognized or enforced in our country  The requisite proof may not be adequate;  They may contravene our established public policies;  They may contradict one another;  In some countries, the administration of justice may be shockingly corrupt. Conditions and requisites before foreign judgments may be recognized and enforced in the Philippines  There must be proof of the foreign judgment;  The judgment must be a civil or commercial matter;  There must be no lack of jurisdiction, no want of notice, no collusion, no fraud, no clear mistake of law or fact;  The judgment must not contravene a sound and established public policy of the forum; and  The judgment must be Res Judicata in the state that rendered it (judgment is final; court has jurisdiction; judgment is on merit; and identity of parties, subject matter and cause of action). Conflicts Rules  These are the provisions found in a countrys own law which govern factual situations possessed of a foreign element. Conflicts of Rules compared to Purely Internal Rules  A purely internal rules governs a purely domestic problem, one without any foreign element; while a conflicts rules applies when the factual situation involves a foreign element. The former directly answers a given problem; the latter merely indirectly responds by indicating whether internal or foreign law is to be applied. Kinds of Conflicts Rules 1. One-Sided Rule / Unilateral Rule indicates when Philippine Internal Law will apply. 2. All-Sided Rule / Multilateral Rule indicates when foreign law is to be applied. Composition of Conflicts Rules 1. The factual situation the set of facts presenting a conflicts problem 2. The point of contact or the connecting factor the law of the country with which the factual situation is most intimately connected Characterization the process of determining under what category a certain set of facts or rules fall. Purpose: to enable the forum to select the proper law.

Factors which give rise to the problem of characterization 1. Different legal systems attach to the same legal term with different meanings, that is, an identity of name covers a difference of nature or content of a legal idea. 2. Different legal systems may contain ideas or conceptions completely unknown to one another. 3. Different legal systems apply different principles for the solution of problems which, in general terms, are of a common nature. 3 Important steps in characterization 1. Characterization of the questions 2. Selection of the proper law 3. Application of the proper law Steps in the application of the proper law 1. The determination of the facts involved  In every case, the law that will be applied will have to depend upon the facts involved. If, for instance, it is clearly determine that no foreign element is involved, no problem in Conflict of Laws arises. 2. The characterization of the factual situation  The process of assigning the proven facts into their particular category. 3. The determination of the conflicts rule which is to be applied  Determining whether the conflicts rule that we have on the matter or some foreign conflicts rules. 4. The characterization of the point of contact or the connecting factor  Determining whose characterization of the point of contact should be adhered to. 5. The characterization of the problem as procedural or substantive  Determining whether the matter is one pertaining to substantive law or procedural law. 6. The pleading and proving of the proper foreign law  There must be a competent evidence of the existence of the foreign law on the matter interpreted using our own internal law. 7. The application of the proper foreign law to the problem Theories on Characterization 1. Lex fori theory the forum merely considers its own concepts its own characterization. 2. Lex causae theory it follow the characterization of the foreign state which is the principal point of contact. 3. Universal analytical theory characterization comes only after a general comparative analytical study of the jurisprudence of all the states involved. 4. Dual theory of lex fori and lex causae similar to the comparative approach theory but only

two concepts enter into the picture, the characterization of lex fori and lex causae. 5. Autonomous theory forum should consider the characterization of the country referred to in the conflicts rule of the lex causae. 6. Totality theory get the characterization intended by the parties or get the law intended by the parties to apply and then proceed to apply the characterization given by that intended law. Status the place of an individual in society, and consists of personal qualities and relationships, more or less permanent, with which the state and the community are concerned. Capacity is merely a part of status, and may be defined as the sum total of his rights and obligations. Kinds of capacity: 1. Capacity to act (active) power to do acts with legal effects; 2. Juridical capacity (passive) the fitness to be the subject of legal relations. Characteristics of status 1. Status is conferred principally by the state not by the individual 2. Status is a matter of public or social interest 3. Status, being a concept of social order, cannot easily be terminated at the mere will or desire of the parties concerned 4. Status is generally supposed to have a universal character Personal law the law attaches to an individual wherever he may go. It may be his national law or domiciliary law or the law of the situs. Theories on Personal law or law that governs status and capacity in general 1. Nationality / Personal theory status and capacity of an individual are generally governed by the law of his nationality. 2. Domiciliary theory / Territorial theory the law of that domicile as the proper determinative law on status and capacity. 3. Situs / Eclectic theory views tha particular place of an event or transaction as generally the controlling law. Nationality membership in an ethnic, social, racial and cultural group. Citizenship membership in a political society. 3 Kinds of Citizens of the Philippines 1. Natural-born citizens those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. 2. Naturalized citizens those who become a citizen through judicial proceedings. 3. Citizens by election those citizens who by virtue of certain legal provisions, become

such by choosing or electing Philippine citizenship at the age of twenty-one (21) or within a reasonable time thereafter. Theories on determining citizenship 1. Jus soli if born in a country, a person is a citizen of the same. 2. Jus sanguinis one follows the citizenship of his parents. The problem of dual or multiple nationalities or citizenships can hardly arise because citizenship is a matter to be exclusively determined by a countrys own law. However, in the viewpoint of a third state, dual or multiple citizenships may really exist. How dual or multiple citizenships arise?  Through a naturalized citizens failure to comply with certain legal requirements in the country of origin  From a combined application of jus soli and jus sanguinis  By the legislative act of states  By the voluntary act of the individual concerned The problem of stateless individuals 1. How stateless is brought about: a. He may have been deprived of his citizenship for any cause; b. He may have renounced his nationality by certain acts, express or implied; c. He may have voluntarily asked for a released from his original state; d. He may have been born in a country which recognizes only the principle of jus sanguinis and of parents whose law recognizes only the principle of jus soli. 2. Personal law of stateless individuals: a. The law of the domicile b. Secondarily the law of the place of temporary residence Naturalization process of acquiring the citizenship of another country. Attributes of naturalization 1. Citizenship is not a right, it is a privilege 2. The requisite conditions for naturalization are laid down by congress 3. Only foreigners may be naturalized 4. Just as a state may denationalize its own citizens, so may naturalization be revoked 5. Naturalization demands allegiance to our Constitution, laws, and government 6. Naturalization is a proceeding in rem, and therefore jurisdictiol over the entire world is requires by publication. Domicile is that place where a person has certain settled, fixed, legal relations because:  it is assigned to him also by the law at the moment or birth (domicile of origin); or  it is assigned to him also by the law after birth on account of a legal disability caused for

instance by minority, insanity, or marriage in the case of a woman (constructive domicile or domicile by operation of law); or  he has his home there that to which, whenever he is absent, he intends to return (domicile of choice). Rules on Domicile of origin 1. Legitimate child domicile of choice of the father at the moment of the birth of the child. 2. Illegitimate child domicile of choice of the mother at the moment of the birth of the child. 3. Legitimated child domicile of the father at the time of the birth of the child. 4. Adopted child domicile of the real parents or the parent by consanguinity. 5. Foundling country where it was found. Rules on Constructive domicile INFANT 1. Legitimate domicile of choice of either the father or the mother. 2. Illegitimate the domicile of choice of the mother. 3. Adopted domicile of choice of the adopter. 4. Ward domicile of choice of the guardian. MARRIED WOMAN 1. Marriage is valid domicile of choice of both husband or the wife. 2. Marriage is voidable before marriage is annulled, domicile of choice of both husband or wife; but after the marriage is annulled, she may decide to remain in the domicile of her former husband or not. 3. Marriage is void she has no constructive domicile. IDIOTS, LUNATICS AND INSANES 1. Below the age of majority considered infants under the law 2. Above the age of majority domicile of choice of guardian or their constructive domicile is in the place where they had their domicile of choice shortly before they became insane. Rules on Domicile of Choice 1. No natural person must ever be without a domicile. 2. No person can have two or more domiciles at the same time, except for certain purposes, and from different legal viewpoints. 3. Every sui juris may change his domicile 4. Once acquired, it remains the domicile unless a new one is obtained a. By a capacitated persons; b. With freedom of choice; c. With actual physical presence in the place chosen; and d. Provable intent that it should be ones fixed and permanent place of abode. Situs or Electic Theory, kinds of participation 1. If the participation is active, the governing law is the law of the actual situs; and

2. If the participation is passive, the governing law is the law of the legal situs. Renvoi literally means a referring back; the problem arises when there is a doubt as to whether a reference to a foreign law: a. Is a reference to the internal law of said foreign law; or b. Is a reference to the whole of the foreign law, including its conflicts rules. Proposed solutions 1. We may reject the renvoi 2. We may accept the renvoi 3. We may follow the theory of desistment or the mutual-disclaimer of jurisdiction theory 4. We may make use of the foreign court theory (our Philippine court, in deciding the case, will put itself in the position of the foreign court and whatever the English court will do respecting the case the Philippine court will likewise do) Double Renvoi is that which occurs when the local court, in adopting the foreign court theory, discovers that the foreign court accepts the revoi. Transmission the process of applying the law of a foreign state thru the law of a second foreign state. Distinguished double renvoi and transmission  Double renvoi deals with two countries; while transmission with three or more countries.  Double renvoi deals with a referring back; while transmission with a transmitting.