CONFLICTS OF LAW

Lecture 1

Apply directly Philippine internal law in the resolution

of the problem (as when, for instance, the proper
foreign law has not been properly pleaded and
proved.)

QUESTIONS:

PROBLEM:

A Filipino gets married in China to a lovely, sexy female

from Mexico, the following questions may rightfully be
asked:

In applying the law of a foreign state, does not a

sovereign state recognize the superiority of another
state?

The law of which country will govern the validity of the

marriage?

In recognizing the principles of a foreign legal system,

do we not implicitly admit the inadequacy of our own
jurisprudence?

Which particular legal system will govern their

personal rights and obligations as husband and wife,
assuming the marriage is valid?

Rules of Private International Law

Private International Law do not derive force from a

power superior to the sovereign states which
recognizes and enforce them;

The very essence of a sovereign state is that it has no

superior;

It is the fundamental principles of the law that each

sovereign state is supreme within its own limits;

When effect is given to a foreign law, 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.

How about their matrimonial property relations?

Conflicts of Laws or Private International Law

Is that part of the Municipal Law of a State which directs its courts
and administrative agencies, when confronted with a legal
problem involving a FOREIGN ELEMENT, whether or not they
should apply a Foreign Law or Foreign Laws.
Four (4) important elements:

Part of the municipal law of a state;

Is a directive to courts and administrative agencies;

Is a legal problem involving a foreign element;

Either an application or a non-application of a foreign

law or foreign laws.

Basic cause for Conflicts Problems

Variance in the municipal laws of the countries

involved;

Multiplicity of governments with separate legal

system;

Municipal legislation, by its very nature, tends to be

diverse because each group of people is virtually a
nation in itself, with a culture, a language, and a
religion peculiarly its own: with varying moods and
national tempers; with distinctive customs, traditions,
ideals and beliefs.

Part of Municipal Law of a State

Every state has its own municipal law, it follows quite

naturally that each state has also its own conflict of
laws. Hence, Philippine Conflict of Laws is that part of
the municipal law of the Philippines 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
foreign laws.

Direction to Courts and Administrative Agencies

Judicial tribunals of a country are called upon to decide

or resolve conflicts problems.

Various administrative agencies of the state e.g. DFA,

BI, SEC and the like decide PRELIMINARILY a given
controversy involving a foreign factor

Examples of Diversity in laws and interpretations

Wills Oral wills not allowed in Philippines; in

Massachusetts, U.S.A., an oral will is valid only if
executed by soldiers in actual service;

Marriage In Mustang, Tibet, on account of the

scarcity of females and the sterility of the agricultural
soil, a woman is allowed to have several husbands,
usually brothers.

Divorce Philippines does not recognize absolute

divorce.

Legal Problem Involving a Foreign Element

Foreign element has to be present before the matter

can be considered a conflicts problem.

Eliminate the foreign element and the problem is

obviously NOT a question calling for private
international law.

PROBLEM:

An Ilocana marries a Tagalog in Davao, the priest being

a resident of Visayan region, what law governs the
validity of the marriage?

Make the groom, however, a Japanese, or make the bride a

mestizilla from Spain, or let the wedding take place
somewhere in China, and immediately, a problem in conflict
of laws, will arise, namely: the law of which country
governs the validity of the marriage contract, assuming that
indeed a marriage has really taken place?
Application or Non-Application of a Foreign Law or Foreign Laws

Determine jurisdiction or willing to assume such

jurisdiction;

Application of Local law or Foreign law;

Scope of Functions of Conflict of Laws

Determination of which country has jurisdiction;

Choice of Laws applicable to a particular case of either

the local or the foreign law;

Determination of the force, validity and effectiveness

of a foreign judgment.

Sources of Conflict of Laws

Indirect sources: the natural moral law, and the works

of writers;

Direct sources: constitutions, codifications, special

laws, treaties and conventions, judicial decisions, and
international customs

Lecture 2
Indirect sources:

Natural moral law rule of human conduct implanted

by God in our nature and in our conscience, urging us
to do right and avoid evil.

Works of writers works of legal scholars on Conflict

of Laws wherein their writings have influenced judicial
decisions on the subject. Some of the famous writers
are: H.G. Goodrich; R.C. Minor; Graveson; E. Rabel; J.H.
Beale; etc.

Factors required in order for State to hear and decide cases

The presence, submission, or appearance of the parties

or one of them;

The doing of certain acts within the State;

The fact that the property involved in the litigation is in

the forum;

The fact that the parties are either citizens or residents

of the State.

Direct sources:

Constitution the fundamental law to which all laws

must conform and all authorities, including the highest
officials of the land, must bow. It contains some
conflicts rules when it enumerates who are Filipino
citizens.
Codification Civil Code, Code of Commerce, and
Family Code.

Special Laws Insurance Act, Patent Law, Foreign

Investment Act, etc.,

Judicial Decisions Art. 8 of the Civil Code, judicial

decisions applying or interpreting the laws or the
Constitution shall form part of the legal system of the
Philippines.

Treaties and Conventions Warsaw Convention of

1929 on airline liability; Extradition treaties with
HK;China;Indonesia;Spain;South
Korea;Australia;Canada; Switzerland;Micronesia and
United States.
International customs lex situs, lex loci celebrationis,
lex nationalii or lex domicilii, principle of territoriality,
and principle of generality.

Principle of Territoriality

Felony is punishable only in the territorial jurisdiction

where it is committed. Exception is the well
established rule of international law that diplomatic
representatives, such as ambassadors or public
ministers.

Principle of Generality

States that the criminal laws of a country bind both the

citizens and the aliens who are in the said country or
territory. This principle is enunciated in Art. 14 of our
Civil Code: Penal laws and those of public security and
safety shall be obligatory upon all who live or sojourn
in Philippine territory, subject to the principle of public
international law and to treaty stipulations.

Ways in Disposing Conflicts Cases

Dismiss the case, either because of lack of jurisdiction

or refusal to assume jurisdiction over the case;
Assume jurisdiction over the case and apply the
internal law of the forum (lex fori); or
Assume jurisdiction over the case and take into
account or apply the law of some other State or States.

In the absence of such minimum contacts, a judgment rendered

by the courts of one State may be refused recognition by other
States.
Types of Judicial Jurisdiction

Jurisdiction over the subject matter;

Jurisdiction over the person;

Jurisdiction over the res;

Proceeding in rem e.g., land registration, or

annulment of marriage.
Quasi in rem directed against the interests of
particular persons in a thing such as action for foreclosure of
mortgage.
Refusal to Assume Jurisdiction due to Forum non conveniens

The evidence and the witnesses may not be readily

available;

The court dockets of the forum may already be clogged

which may hamper the speedy administration of
justice;

The evils forum-shopping

The forum has no particular interest in the case; the

parties may either be citizens or residents; the subject
matter of the litigation had evolved somewhere else;

Other courts are open and the case may be better tried
in said courts.

Assumption of Jurisdiction

Apply the internal or domestic law (lex fori);

Apply the proper foreign law (lex causae).

Application of the Internal or Domestic Law

When the law of the forum expressly so provides in its

conflicts rules;

When the proper foreign law has not been properly

pleaded and proved;

When the case involves any of the exception to the

application of the proper foreign law.

When the law expressly provides for the application of Internal

Law

Art. 80 FC In the absence of a contrary stipulation in

a marriage settlement, the property relations of the
spouses shall be governed by Philippines laws,
regardless of the place of the celebration of the
marriage and their residence.

Art. 1039 CC Capacity to succeed is governed by the

law of the nation of the decedent.

Jurisdiction under International Law

The right of a State to exercise authority over persons

and things within its boundaries, subject to certain
exceptions. Thus, a State does not assume jurisdiction
over traveling sovereigns, ambassadors, and
diplomatic representatives of other States.

Judicial Jurisdiction

The legal authority of a State to exercise authority,

through its courts or agencies, to hear and adjudicate
cases.

It is the power of a court or agency to hear and

determine an issue upon which its decision is sought.

When the proper foreign law has not been properly pleaded and
proved

No judicial notice of any foreign law. If not properly

pleaded and proved, the presumption is that foreign
law is the same as the local or internal law.

Proof of written foreign law:

give protection to our own citizens and residents.

(Hilton v. Guyot, 159 U.S.113)

a. official publication thereof; or

Comity based on reciprocity if local law is recognized

in a foreign country, the forum should also recognize
the laws of that foreign country.

Comity based on the persuasiveness of a foreign

judgment whether or not foreign country recognizes
our laws is of no moment; what is important is that the
foreign judgment is meritorious and rendered with
jurisdiction.

b. by a copy attested by the officer having the legal custody of

the record, or by his deputy, and accompanied with a certificate
that such officer has custody and the law is in force at that time.
Proof of Unwritten foreign law:
a. Oral testimony of expert witnesses; or
b. By printed and published books of reports of decision of the
country involved, if proved to be commonly admitted in such
courts.
Exception to the application of the proper Foreign Law

When the enforcement of the foreign law would run

counter to an important public policy of the forum; e.g.
Two Filipinos made joint wills while they were in
Germany. In said country joint wills are valid. May the
joint wills be successfully probated in the Philippines?

No, because they are contrary to Philippine public

policy. Art 818 CC. Two or more persons cannot make a will
jointly, or in the same instrument, either for their reciprocal
benefit or for the benefit of a third person.

Where the application of foreign law would infringe

good morality as understood in the forum; e.g.
prostitution; agreements to reward crime; transactions
that ultimately lead to human slavery or involuntary
servitude.

All these even if valid in the place where agreed upon

will not be countenanced in the Philippines

When the foreign law is penal in nature; (principle of

territoriality)

When the foreign law is procedural in nature;(no

vested rights in the rules of procedure)

e.g. An American, used to trials by jury in the United

States, cannot insist on a jury trial in the Philippines in
case he is accused of a crime he has committed in our
country. When the question involves real or personal
property situated in the forum (lex situs);

When the foreign law is fiscal (revenue-producing; e.g.

collection of taxes) or administrative in nature;

When the application of foreign law would involve

injustice to the citizens or residents of the forum; e.g.
In State Y, a person 15 years of age can validly
contract. A Filipino boy, 15 years old, contracts with
another in said state.

Theory of Vested Rights

In King v. Sarria, 69 N.Y. 24, the court held that a right having
been created by the appropriate law, the recognition of its
existence follows everywhere.
Theory of Local Law

Where the application of foreign law would endanger

the vital interests of the State.

The national interests of the forum should not be jeopardized;

thus, any foreign law, judgment, or contract that may result in the
undermining of our government processes will obviously be
refused enforcement in our forum;
e.g. A contract entered into between a Filipino employee and an
alien government by virtue of which the former is supposed to
furnish the latter with secret or classified military maps involving
the defense of the Philippines.
Theories on why the Foreign Law may in some cases be given
effect

Theory on Comity It makes for harmony in the

relations between states. Application of the proper
foreign law is neither obligatory nor just a matter of
courtesy; it is more of convenience and the desire to

The adherents of this school of thought believe that we

apply foreign law not because it is foreign, but because
our own rules by 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.

e.g. A Chinese national dies, leaving properties located

in the Philippines, the succession to his estate shall be governed
by the law of his nationality,Chinese law. (2nd par., Art. 16, Civil
Code).
Under the Local Law Theory, we do not apply Chinese law itself.
What we do apply is our own law, the 2nd par. Art. 16 Civil Code
which, for purposes of litigation, incorporates unto itself the
Chinese law on succession.
Theory of Harmony of Laws

To apply the proper foreign law so that, respective of

the forum, the solution will be the same, or
approximately the same.

e.g. An ordinary contract is entered into in London, the

extrinsic validity of the contract should be governed by British
Law. Even if the question is raised elsewhere, say in Philippines,
the extrinsic validity should still be tested by British Law, the lex
loci celebrationes. (1st par., Art.17, Civil Code) And so, as long as
the contract is valid under British Law, it should be valid
everywhere.
Theory of Justice

The purpose of all law is to dispense justice, but the

problem with this theory is that there is no fixed
concept of justice because almost every man has his
own notion of fairness and equity.

What is sought to be enforced is not a law or statue

but a judgment of a foreign court which does not have
automatic extraterritorial application.

If we assume the contract to be binding on the boy, we shall be

committing violence to our sense of justice.
Upon the other hand, if a just liability is incurred, we ought not
to hesitate on its enforcement. Prevailing circumstances should
naturally determine the justness of the claim.

It is not the foreign law that is being enforced but

simply the vested rights that have been vested under
such foreign law or judgment.

e.g. The class suit of the 10,000 torture victims. They won the
biggest judgment ever -$2 billion. The judgment has been
affirmed by no less than the Supreme Court of the United States.
It is now final. Yet it is still to be enforced through the local courts.
The Right Theory

The truth may be found in the combination of the

theories:

a. that sometimes we have to apply the proper foreign law

because courtesy, convenience, and international duty so
demand;
b. that there are vested rights we cannot conceivably ignore;
c. that all too often the foreign law has apparently become part
and parcel of our law;
d. that identical situations should be resolved by identical
remedies, irrespective of the forum; and finally

f. that to do otherwise may ultimately result in the negation of

justice.

Lecture 3
NATURE AND COMPOSITION OF CONFLICTS RULES
Conflict rules are the provisions found in a countrys municipal law
which govern factual situations involving a foreign element.

Art. 810. A person may execute a holographic will

which must be entirely written, dated, and signed by
the testator himself. It is subject to no other form, and
may be made in or out of the Philippines, and need not
be witnessed.
Art. 185. When a Filipino is in a foreign country, he is
authorized to make a will in any of the forms
established by the law in the country in which he may
be. Such will may be probated in the Philippines.

Art. 1039. Capacity to succeed is governed by the law

of the nation of the deceased.

Art. 1753. The law of the country to which the goods

are to be transported shall govern the liability of the of
the common carrier for their loss, destruction, or
deterioration.

Art. 15. Laws relating to family rights and duties, or to

the status, condition, and legal capacity of persons are
binding upon citizens of the Philippines, even though
living abroad.

What is the factual situation?

Real property as well as personal property.

What is the point of contact?

The law of the country where it is situated.

Characterization is the process of determining under

what category a certain set of facts or rules fall.
Sometimes it is called qualification or classification.

The purpose of characterization is to enable the forum

to select the proper law and assign a disputed question
to an area in substantive law, such as torts, contracts,
family law or property.

Factors that give rise to the problem of characterization:

Different legal systems attach to the same legal term

with different meanings; (e.g. domicile, marriage)

Different legal systems may contain ideas or

conceptions completely unknown to one another;

Different legal systems apply different principles for

the solution of problems which, in general terms, are
of a common nature.

STEPS IN CHARACTERIZATION
1.

Art. 16. Real property as well as personal property is

subject to the law of the country where it is situated.

However, intestate and testamentary successions,

both with respect to the order of succession and to the amount of
successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person
whose succession is under consideration, whatever may be the
nature of the property and regardless of the country wherein said
property may be found.

Real property as well as personal property is subject

to the law of the country where it is situated. (1st par.,
Art. 16, Civil Code)

Characterization of Conflicts Rules

Examples:

Art. 26. All marriages solemnized outside the

Philippines in accordance with the laws in force in the
country where they were solemnized and valid there
as such, shall also be valid in this country, except those
prohibited under Articles 35(1),(4),(5)and(6),36,37,and
38.

Where a marriage between a

Filipino citizen and a foreigner is validly celebrated, and a divorce
is thereafter validly obtained abroad by the alien spouse, the
Filipino spouse shall have the capacity to remarry under Philippine
law.
Composition of Conflicts Rules

Factual situation the set of facts presenting the

conflicts problem;

Point of contact or connecting factor the law of the

country with which the factual is most intimately
connected.

Illustration:

capacity to succeed is governed by the law of the

nation of the decedent. (Art. 1039 Civil Code)

What is the factual situation?

Capacity to succeed.

What is the point of contact?

Law of the nation of the decedent.

*_*_*_*_*_*_*_*_*_*_*_*_*_*_*_*

The determination of the facts involved no foreign

element is involved, no problem in Conflicts of Laws
arise;
The characterization of the factual situation whether
the problem is one of succession, tort, contract, or of
conjugal marital rights;

Example of Characterization of the factual situation:

A Japanese wife dies. Her Chinese husband claims the

entire conjugal property in the Philippines as his,
alleging that under Chinese law on marital property,
the entire conjugal property is his and that this so not
because of succession, but because of accretion.
Whose characterization of the factual situation shall
apply, Chinese or Philippine law?

Under our own law, this is clearly a problem, not of

accretion, but of succession. Characterization of the
forum apply hence its Philippine law.

2.

The determination of the conflicts rule which is to be

applied conflicts rule of the forum as it still have to
ascertain the precise foreign country that has the nearest
or the most intimate connection with the facts that have
been brought out
The characterization of the point of contact or the
connector factor whose characterization of the point
of contact should be adhered to?
Atong dies in the Philippines, with personal and real
properties situated here. He was a naturalized Filipino
citizen, but inasmuch as he had failed to comply with
certain requisites of Chinese law, China up to the time
of his death still considered him a Chinese National.
What is his nationality at the time of his death?
Applying Chinese characterization, he was a Chinese;
applying our characterization, he was already a
Filipino. Whose characterization must be followed?
This is a problem in the characterization of the point of
contact.
The characterization of the forum must prevail because
of the time-honored principle that nationality is a matter
exclusively determinable by the country concerned.

3.

Exception:
If problems deals with real or personal property, lex
situs govern, particularly if the question deals with the
validity of their disposition or alienation, or the
capacity of the contracting parties..
If the forum is merely an incidental place of trial, the
characterization of the forum has to give way to any
common characterization that may exist in the states
involved.

may be his national law or his domiciliary law or

the law of the situs, depending upon the theory
applied and enforced in the forum.

4.

The characterization of the problem as substantive or

procedural.
5. Procedural matters are governed by the law of the
forum.
6. Statute of Frauds and periods of prescription are view
differently, some consider them as procedural while
others consider them as substantive law or vice versa.
Whose characterization shall prevail?
7. Consider the prescriptive period or the Statute of Frauds
that the parties had in mind at the time the transaction
took place.
Illustration:

8.
9.

A, an Englishman, borrowed a sum of money in

England from B, another Englishman. The contract was
evidenced by a written document, a promissory note.
The contract subsequently matured. Six (6) years after
maturity, suit was brought in the Philippines by B
against A for the recovery of the amount borrowed.
The prescriptive period to sue on written contract is 4
yrs. in England; in Philippines is 10 yrs. Has the cause of
action prescribed?

The Pleading and Proving of the Proper Foreign Law.

The application of the proper foreign law to the
problem Once the forum have ascertained the
pertinent fact, characterized the situation and the point
of contact, made up its mind as to the proper conflicts
rule, and been satisfied with the relevancy, competency,
and admissibility of the foreign law or laws involved,
nothing else remains except the application of the
selected proper law to the problem at hand.
THEORIES ON CHARACTERIZATION
The lex fori theory the forum merely considers its
own concepts its own characterization. Grave injustice
may apply unless the characterization of the foreign
state is considered;
The lex causae theory the forum follow the
characterization of the foreign state that is the
principal point of contact. Drawback is that the forum
does not know exactly what the principal point of
contact is until after it shall have made a
characterization of the factual situation;
The universal analytical or comparative approach
theory characterization comes only after a general
comparative analytical study of the jurisprudence of
all the states involved.
The dual theory of lex fori and les causae similar
comparative approach theory except that instead of
considering worldwide conceptions, only two
concepts enter into the picture the characterization of
the lex fori and that of the lex fori and that of the lex
causae.
The autonomous theory the forum consider the
characterization of the country referred to in the
conflicts rule of the lex causae. (e.g. if the
characterization in the forum State A points to State B
as the lex causae and the conflicts rule in state B
refers to State C as the proper point of contact, it is the
characterization in State C which must be used by
State A. This theory has hardly any follower.
The totality theory A very simple theory; get the
characterization intended by the parties; or to put it
more elaborately, get the law intended by the parties
to apply, and then proceed to apply the
characterization given by the intended law. The
trouble with this theory is that sometimes it is hard to
discover exactly what law was intended by the parties.

Personal Law is the law that attaches to an individual,

wherever he may go; a law that generally governs his
status, his capacity, his family relations, and the
consequences of his actuations; this personal law

Two (2) kinds of capacity (Art. 37 Civil Code)

1. Capacity to act power to do acts with legal effects;

this is acquired and may be lost.
2. Juridical capacity is the fitness to be the subject of
legal relations, is inherent in every natural person and is lost only
through death.
STATUS - Status is the sum total of an individuals qualities and
relationships, more or less permanent, with which the state is
concerned.
Components of status:
1. Being married or unmarried, widowed or

Regardless of the Philippine or English characterization

of prescription, the action has prescribed as English
law was evidently intended by the parties to govern
their contract.

THE THEORY OF THE PERSONAL LAW

CAPACITY - Capacity is a part of status and the sum total of ones

rights and obligations.

divorced;

2. Being a legitimate or an illegitimate child;

3. Being a minor or of major age; and
4. Having the capacity to enter into transactions.
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; when a certain status is created by law of one country,
it is GENERALLY judicially recognized all over the world.
THEORIES ON PERSONAL LAW
1.

NATIONALITY THEORY
Nationality theory is the theory by virtue of which the
status and capacity of an individual are generally
governed by the law of his nationality.

Nationality is membership in an ethnic, social, racial,

and cultural group.

Philippine Conflicts of Laws consider nationality and

citizenship as synonymous terms.

Citizenship is membership in a political society.

CITIZENS OF THE PHILIPPINES

Before the advent of Spain in our country, there were

no Filipino citizens. Our inhabitants dwelt in isolated
barangays under various headsmen. When Spain came,
she made all our people subjects of Spain thus, there
were still no Filipino citizens. With the coming of the
Americans, our political status was clarified by the U.S.
Congress, conformably with the provisions of the
Treaty of Paris on December 10, 1898 that transferred
our country from Spanish to American sovereignty.

Philippine Bill of 1902 (U.S. Act of July 1, 1902)

provided in Section 4 thereof

That all inhabitants of the Philippine Islands

continuing to reside therein who were Spanish subjects on April
11, 1899, and then resided in said Islands, and their children born
subsequent thereto, shall be deemed and held to be citizens of
the Philippine Island and as such entitled to the protection of the
United States, except such as shall have elected to preserve their
allegiance to the Crown of Spain in accordance with the provisions
of the treaty of peace between the United States and Spain signed
at Paris, December 10, 1898.
THREE KINDS OF CITIZENS IN THE PHILIPPINES
1.

Natural-born citizens- those who are citizens of the

Philippine from birth without having to perform any

act to acquire or perfect their Philippine citizenship.

(Art.IV, Sec. 2, The 1987 Philippine Constitution)
2.

Naturalized citizens citizens who become such

through judicial proceeding.

3.

Citizen by election those 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 WHETHER PLACE OR ANCESTRY DETERMINES

CITIZENSHIP

Jus soli citizenship by birth on the country he was

born.

Jus sanguinis One follows the citizenship of his

parents; this is citizenship by blood.

HOW PHILIPPINE CITIZENSHIP MAY BE LOST

By naturalization in foreign countries;

By express renunciation of citizenship;

By subscribing to an oath of allegiance to support the

constitution or laws of a foreign country upon attaining
21 yrs. of age or more;

By rendering service to, or accepting commission in,

the armed forces of a foreign country;

By cancellation of the certificate of naturalization;

By having been declared by competent authority, a

deserter of the Philippines armed forces in time of war,
unless subsequently, a plenary pardon or amnesty has
been granted; and

In the case of woman, upon her marriage to a foreigner, if by

virtue of the laws in force in her husbands country, she acquires
his nationality.

RENVOI DOCTRINE

Problem:

By naturalization;

By repatriation; and

By direct act of National Assembly (now Congress). RA

No. 9225 (Aug. 29, 2003) Citizenship retention and reacquisition Act of 2003. Sec. 3, by taking an oath of
allegiance to the Republic.

Lecture 4

On the surface, the problem is simple. The 2nd par. Art.

16 of the Civil Code points to the law of the nationality
of the decedent.

But under California law it contains a conflicts rule that

refers the matter back to the law of the decedents
domicile because California adheres to the domiciliary
theory.

To understand renvoi we must have a clear grasp of

the elements of the definition of Conflict of Laws as
well as the distinctions between conflict rules and
purely internal rules. Conflict of Laws is a part of the
municipal law of each state, and conflicts rules, along
with purely internal rules, are embedded in the
municipal law. If by national law of the decedent we
mean the internal rule of the foreign law, then the
California law on succession is immediately applied, in
which case the dog gets everything, and Jose got
nothing.

The problem of renvoi arises only when the reference

is directed to the foreign law as a whole, including its
conflicts rules.

In the problem where the conflicts rule of California

mandates the application of the law of the domicile of
the decedent, which is Philippine law, thus bouncing
back the ball to our court. If we do not know how to
handle the bouncing back, or the renvoi, we might end
up with a case of international football. (Aznar v.
Garcia, 7 SCRA 95)

Understanding the dynamics of the conflict of conflicts

rules of different countries entails a fair amount of
mental gymnastics. The operative word is mental,
because the case is not actually referred by the local
court to the foreign court, or vice versa. The reference
is purely mental or imaginary. So with the reference
back. The case does not leave the local court. It does
not move at all. The process is just an elaborate mental
exercise. It is completed without the foreign court
getting to know about it.

2.SITUS OR ECLECTIC THEORY

Smith, a California citizen who is domiciled in the

Philippines, dies in Cebu, leaving Jose, his Filipino son,
as the sole heir. Smiths properties are located in the
Philippines. He bequeaths all his properties not to Jose
but to his favorite dog in California. The law of what
state governs the succession?

Discussion:

HOW PHILIPPINE CITIZENSHIP MAY BE REACQUIRED

Renvoi is a French word that means a referring back.

It is a term used in Conflict of Laws to denote the
phenomenon where the conflicts rule of the forum
makes a reference to a foreign law, but the foreign law
is found to contain a conflicts rule that returns or
refers back the matter to the law of the forum.

The situs or eclectic theory holds that the capacity,

legal condition, or status of an individual should be
governed by the law of the place (situs) where an
important element of the problem occurs or is
situated.

KINDS OF SITUS THEORY DEPENDING ON PARTICIPATION

SOLUTION TO THE PROBLEM OF RENVOI

If participation is active (voluntary act) the governing
law is the law of the place of the transaction or event;
If participation is passive (effects of the act) the
governing law is the law of his domicile.

Problem:

Two Filipinos, domicile in China, get married in

England. What law governs:

(a) validity of marriage?

Since marriage took place in England the active situs,

England land laws governs the validity of the marriage.

(b) marital obligations of husband and wife?

Passive participation, governing law domicile (China).

Applying our conflicts rules on property relations is
Nationality Theory.

1.

Rejecting the Renvoi;

2.

Accepting the Renvoi;

3.

Theory of Desistment;and

4.

Foreign Court Theory;

REJECTING THE RENVOI - To avoid a reference back, or to reject

the renvoi, the reference should be directed to the internal rules
of the proper foreign law, which are immediately applied. Hence,
there is actually no renvoi.
ACCEPTING THE RENVOI - To welcome the reference back, or to
accept the renvoi, the initial reference is directed to the proper
foreign law as a whole, including its conflicts rules. In the
problem, where the California conflicts rule refers the matter back
to the domicile of the decedent, or Philippine law. The reference
back or renvoi is accepted by guiding it to our internal rules on

succession. This is also known as single renvoi or single

remission.
THEORY OF DESISTMENT

Also called the mutual disclaimer of jurisdiction

theory. Under this theory, the forum knowing
beforehand that the foreign law adheres to a different
theory of the personal law, and fearing on that account
a reference back, or renvoi, and the complications it
would entail, the local court desists from making any
reference to the foreign law and applies the lex fori at
once.

The difficulty with this solution is that by refraining

from making a reference to the proper foreign law the
court would have to ignore the mandate of the local
conflicts rule.

FOREIGN COURT THEORY

The Philippine court puts itself in the position of the

foreign court, and resolves to do whatever the foreign
court will do.

in

e.g. If the foreign court rejects the renvoi and applies

Philippine law, the Philippine court will apply Philippine law.
CONCLUSION

In the absence of more definitive rules on the matter it

is suggested that the theory be adopted which,
considering the circumstances of a given situation, will
best result in FAIRNESS, EQUITY, and JUSTICE.

TRANSMISSION

It is the process of applying the law of a foreign

country through the law of another foreign country.

e.g. An English national who is domiciled in Spain dies in the

Philippines, leaving properties here. In the intestate proceeding
in the Philippines, the local court, applying the 2nd par. Art. 16 CC,
mentally refers the case to the national law of the decedent,
English law, which in turn makes a reference to the law of the
domicile of the decedent, Spanish law. Thus, the Philippine court
ultimately applies the Spanish law through English law.
DOUBLE RENVOI

It is that which occurs when the local court, in adopting

the foreign court theory, discovers that the foreign
court accepts the renvoi.

E.g. The Philippines court adopts the foreign court

theory and, therefore, will do what the English court
would do. But the English court, let us say, accepts the
renvoi that is, it refers the matter to the Philippines
(domicile) which in turn refers the matter to England
(nationality). Since England accepts the referring back,
it will in deciding the matter apply the English internal
law on succession.

DOUBLE RENVOI DISTINGUISHED FROM TRANSMISSION

Double renvoi deals with TWO countries; transmission,

with THREE or MORE countries.

Double renvoi deals with a referring back;

transmission with a transmitting.

IMPLICATIONS OF RENVOI AND TRANSMISSION

Both renvoi and transmission may apply NOT only to

successional rights; they may refer also to marriage, to
other contracts and agreements and almost anything
covered by Conflict of Laws.

Both problems may occur even if (in renvoi) the two

countries BOTH adhere to the NATIONALITY THEORY or
BOTH to the DOMICILIARY THEORY.