Conflict of Laws - Hizon

NOTES ON CONFLICT OF LAWS Kenneth and King C.
Hizon
UNIVERSITY OF SANTO TOMAS Faculty of Civil Law A.Y. 2010-2011 Second Semester
CONFLICT OF LAWS
CHAPTER 1 NATURE, DEFINITION, AND SCOPE OF THE SUBJECT Q: What factors led to development of Private International Law? A: 1. 2. 3. Advances in communication and transportation; Frequency and variety of events and transactions that cut across national and territorial boundaries; Diversity of legal systems
Q: What is Private International Law (PrIL)? A: 1. It embraces universal principles of right and justice which govern the courts of one state having before them cases involving the operation and effect of the laws of another state or country (Minor). That department of private jurisprudence which determines before the courts of nation each suit should be brought, and by law of what nation it should be decided (Westlake). Part of the law which deals with the extent of which the law of a state operates and determines whether the rules of one or another state should be applied in a legal situation (Judge Goodrich). Of law designated p That branch of law designated to deal with conflicts between interests of 2 or more states in applying the policies embodied in the their respective laws (Prof. Currie). That part of the law of each state which determines whether in dealing with a factual situation involving a foreign element, the law or judgment of some other State will be recognized. a. b. c. It is part of municipal law of each state; Subject is any factual situation containing a foreign element; Function is to determine whether the rules of law or judgments of some other state or states (and to what extent), should we recognized or applied the forum.
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NOTE: If the world is governed by 1 State, 1 set of rules and administered by 1 central governmentthere would be no such subject as Conflict of Laws. Q: What are the factors that give rise to Conflict of Laws?
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4. A: 1. Division of the world into different States or territorial units, each State or unit having different system of law; and Presence of situation containing foreign elementevent or transaction affected by diverse laws of 2 or more states or units. Diversity of laws Differences in legal rules have their root cause in the particular habits, ways of thinking, mores and customs of each group of people. Each state has its own rules dealing with the same aspects of human existencebirth, personality, filial relations, marriage, separation, divorce, property, contracts and transactions, inheritance, etc. Eg. DivorceUS and Japan versus Philippines Situation involving a foreign element Presence of foreign element is inevitable since social and economic affairs of individuals and associations are rarely confined to the geographic limits of their birth or inception. Q: What are the forms where foreign element may appear? 2. A: 3. 1. 2. One of the parties is an alien or has a foreign domicile; Contract between national involves properties situated in another State.
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NOTE: Conflict of Laws is not a separate branch of law but it traverses and concerns almost every department of law. Function and Object of Conflict of Laws Q: What are the threefold functions of PrIL? A: 1. To prescribe the conditions under which a court or agency is competent to entertain a suit or proceeding involving facts containing a foreign element; To specify the circumstances in which foreign judgment will be recognized as valid and binding in the forum; To determine for each class of cases the particular system of law by reference to which the rights of the parties must be ascertainedchoice of law (to determine which of the
Facultad de Derecho Civil
UNIVERSITY OF SANTO TOMAS
NOTES ON CONFLICT OF LAWS Kenneth and King C. Hizon
several simultaneously valid legal systems is applicable to a given set of facts. NOTE: The legal effects of a certain set of facts are not always determined by one legal system: a. Cumulative:
Deals with private individuals Assumes control over transactions strictly private in nature, in which the State has no interest
Deals for the most part with States Recognizes transactions in which sovereign States are interested
Q: What is Public International Law? i. A given set of facts may produce legal effects each of which is governed by a different legal system: e.g. marriage between 2 French nationals in Manila: the formal validity will be governed by Philippine law and the property relations shall be governed by French law. A given set of facts may produce legal effects only if certain conditions common to 2 legal systems are fulfilled: e.g. an act committed in the Philippines gives rise to an action for tort in England only if it constitutes a tort according to English law and is not justifiable under the law of the Philippines. A: That body of rules and principles of action which are binding upon States in their relations with another. NOTE: The distinctions are not recognized by the Monists. Accordingly, individuals alone are and can be the subjects of International law, whether private or public. Another school of thought broadens the applicability of PIL as to include not only States but individuals as well. Accordingly, PIL is the body of rules and principles which are binding upon States in their relations with one another and upon individuals both in their relations with States and in their relations with another in matters of international concern. Sempio-Dy (2004) Q: What is Conflicts of Law? Q: What is the purpose of PrIL? A: It is the promotion of the peaceable intercourse of private persons through the rules that are eminently just and workable. Specifically, a. b. c. For the protection of the justified and rational expectations of parties to a transaction; Application of the law of the State having dominant interest in a given set of facts; Promotion of the stability and predictability by achieving uniformity of solution to a case wherever the forum may be situated Dispensing justice in individual cases. A: It is that part of the law which comes into play when the issue before the court affects some fact, event or transaction is so clearly connected with a foreign system of law as to necessitate recourse to that system. a. Governs the courts of one state having before them cases involving the operation and effect of the laws of another state or country; 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/s.
ii.
b.
Alternative- if an alien executes a will in the Philippines, the formal validity of the will may be judged alternatively by Philippine law or his own national law (Art. 817).
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d.
Q: What is a Conflict of Law Case? Q: Distinguish between PrIL and PIL. A: International law refers to the law that regulates the relations of States and other entities possessing international personality. There are no universally accepted principles of PrIL. Every state has its own distinctive set of rules of Conflict of Laws. Private International Law The rules are national or municipal in character XPN: When embodied in a convention (Warsaw in 1929 and Hague in 1955) Source is the will of a particular State Recourse is had to municipal or national tribunals Public International Law The rules are international in nature A: It is any case involving facts occurring in more than 1 state or nation and thus, it is necessary to make a choice between the laws of different states or countries. Q: What do you mean by states? A: It means political subdivisions of states or countries which have their own legal systems. Q: Is it part of International law? A: No. it is rather part of municipal law of each state. By municipal law, it means the internal or local law of each state, since every state has its own internal or local system of law, so each state also has its own conflicts of law. Sempio-Dy (2004) Q: Distinguish between Conflicts of Laws from Public International Law? A:
Source is the common will of the States In case of conflict, recourse is had to diplomatic channels then to good offices, mediation, conciliation, commission of inquiry, and arbitration, then to retorsion, reprisal and other measures short of war
As to persons involved
As to nature As to transactions involved
As to remedies applied
Public International Law Governs sovereign states and entities that are internationally recognized or possessed of international personality International Applies to transactions in which only sovereign states or entities with international personality are concerned and which affect public interest; a. Peaceful remedies like diplomatic negotiations, mediation, inquiry and conciliation, arbitration, or judicial settlement by international tribunals like the UN; b. If the remedies fail, states concerned may resort to forcible remedies like severance of diplomatic relations, retorsions, reprisals, embargo, boycott, nonintercourse, pacific blockades, collective measures under the UN; c. War
Conflicts of Law Governs private individuals or corporations
aroused the attention of Italian jurists at the University of Bolognareviving the study of Roman Law. Bartolus-Father of PrIL and most outstanding jurist of that time (1314-1347) Theory of statues was formulated to solve conflicts Statute originally stood for the particular laws of the several Italian city-states but was later used to mean local laws, statutory or customary. Personal Statutes Applied to and followed a person outside his domicile (personal status, movables) Mobilia sequuntur personam Mixed Statutes Apply principally to contracts
Municipal Transactions strictly private in nature in which the country as such has generally no interest.
Real Statutes Applied to immovable things within the territory
Judicial or administrative tribunals in accordance with the rules of procedure of the country where they sit.
The French jurists of the 16 century Political organization in France in the 16 century Coutume or customs- different French provinces separate laws Since their customs differed, clashes arouse frequently and French jurists built upon the statute theory to resolve the conflicts Charles Dumoulin (1500-1566)- responsible for the doctrine that parties to the contract could choose the law that was to govern their agreement Bertrand D Argentre (1519-1590)- put forward 2 theories: a. That whenever there was any doubt as to whether statutory rule was personal or real, or whenever a rule was partly real and partly personal, it was to be deemed rea. In matters of succession, where a person leaves immovables in various countries, the law of the countries concerned should be applied respectively to the immovable therein situated. Doctrine of comitas gentium Q: What is the Doctrine of comitas gentium? A: It is a development occurred in the Netherlands. Netherlands obtained independence from the Reich by the Treaty of Westphalia (ends the 30 years of war in the Holy Roman Empire and the eighty years war between Spain and Dutch Republic). a. A new confederation of nation composed of legally independent provinces each with its own lawfertile field for the development of PrIL. Burgundus, Rodenburg, Paul Voet, John Voet and Ulrich Huber- denied that States were under any legal obligation to apply foreign law. They contend that such application, unless imposed by a treaty, results only from comitas gentiumfrom considerations of courtesy and expediency. Huber and many English Writers laid down the following principles: A. Doctrine of Pure Territoriality:
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CHAPTER II HISTORY AND IMPORTANCE Earliest period-Theory of Statutes Origin: Rise of the Italian city-states such as Florence, Milan, Bologna, Pisa, Venice, Padua and Medina which due to their growing wealth and progress in trade and commerce, developed customs of their own on a large scale. The resulting inter-municipal conflicts
b.
c.
Laws of every state operate within the territorial limits, and such is binding to all subjects but not beyond those limits; Subjects of a state are all those who are found within the limits of its territory, whether they reside there permanently or whether their presence there is only temporary;
Frenchmen even when residing in foreign countries. This established the principle that an individuals personal law ought to determined by his nationality rather than by his domicile. 19 century jurists Q: Who are the 2 groups of writers in PrIL? A: THEORETICAL (Deductive) Began with a set of priori principles, from which they derive a body of consistent rules Continental writers POSITIVE (Inductive) Studies actual rules in force and endeavored to reduce them to systematic order English and American writers Do not claim universal validity for their rules and are careful to indulge in any generalization not supported by decisions.
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B. Extraterritorial effect Every sovereign, out of comity, admits that a law which has already operated in the country of origin shall retain its force everywhere, provided that this will not prejudice the subjects of the sovereign by whom its recognition is sought. Extraterritorial effect may be obtained through the application of the doctrine of comity designed to secure reciprocity and thereby contribute to the advantage of all nations concerned. Doctrine of Comity results from the fear of that blanket application of territorial law to things and persons within a state would result in unfairness. Comitas was supposed to be liberally granted in answer to the demands of international trade. Yet, the Dutch did not intend to abandon the Theory of Statutes. What they maintained was that this theory should be subordinated to the ideas of comitas Beginning of codifications The Dutch emphasis on sovereignty as the source of all rules of Conflict of Law induced legislators in Europe to establish rules of PrIL in their codes of civil law. Bavarian Code of 1756: It declines to accept the rule that movables follow the person Lex situs (law of the place where the thing is situated) shall prevail without any distinction between immovables and movables and between corporeal or incorporeal things. Prussian General Code of 1794-The thing may rather have effect than be destroyed: 1. If a person has 2 domiciles, which is possible under European laws, that domicile is decisive under the law of which the contract or act in question is valid; If a person domiciled abroad enters into contract within Prussian territory respecting chattels there, the contract is valid if under the law is either (his domicile or that of Prussia) he is capable of entering into contracts.
JOSEPH STORY (An American Judge) American judge First authoritative writer on Anglo-American Conflict of Laws Publishes Commentaries on the Conflict of Laws (1834)he brought together the conclusions of Continental writers and the decision sof courts in England and America. Brought about the renaissance of the subject Approach was more positive (inductive) than theoretical Maxims: Every nation possesses an exclusive sovereignty and jurisdiction within its own territory that directly binds all properties within its territory, and all persons who are residents within it (territorial sovereignty) No state or nation can by its law directly affect or bind property out of its own-for it would be incompatible with the equality and exclusiveness of the sovereignty of all nations that any nation should be at liberty to regulate either persons or things not within its territory. Acceptance of Dutch Theory of Comity SAVIGNY Great German jurist 8 VOLUME OF Savignys System of Modern Roman Law (1849) It is expedient that in cases containing a foreign element, the same legal relations have to expect the same decision whether the judgment be pronounced in this state or in that. It is essential to bear in mind the existence of an international community of nations having intercourse with one another. Comity is beneficial and advantageous to all concerned, the state and the individuals The question is not W/N the rule is related to property, persons or acts but to classify legal relationships so as to ascertain for every legal relation that law to which, in its proper nature, it belongs or is subject and thus find out
2.
NOTE: Hence, if by law of his domicile, he is incapacitated, whereas by the law of the place where he entered into a contract (Prussia), he is qualified to contract, then the law under which the contract is valid is to be applied. French Code of 1804- Article 3 provided that French Law concerning personal status and capacity govern
where a relation has its seat (the situs) the seat of a particular legal relationship. Law of the place in which that act has its seat C. What is the law with which the transaction or event has the closest connection? What is the law that has the most significant relationship to the occurrence and the parties? Pasquale Stanislao Mancini
Territorial system Territorial system- only the law of a state applies to persons and things within its territory. Foreign law is not applied in the forum. 2 Factions: 1. only rights vested or acquired under the foreign law are recognized in the forum, but not the foreign law itself 2. vested rights theory is illogical and is not true in practice History in the Philippines Lack of awareness in the Philippines of conflicts problems posed by facts containing or involving a foreign element After half a century of confusion and sloppiness, some kind of order is beginning to emerge. American decisions are no longer adopted without question. Sempio-Dy (2004) a. b. c. d. e. Fast advance of modern technology in the means of communication between states; Rapid growth and expansion of international trade and commerce; Influx of tourists; Massive migration; Great increase of business transactions of foreign corporations in the Philippines;
Before 19 century: a persons status was usually governed by the law of his domicile. Mancini delivered in University of Turin- Nationality as the Basis of the Law of Nations (1851) he defended the thesis that the rational basis of PIL is the nation and the nazionalita. Opposing the rule on domicile, Mancini asserts the rule of nationality, and that the components of nationality are religion, customs of life, language, race of the people, historical traditions, even the landscape of the country and its climateall of which create a spiritual unity through the common consciousness of nationality. Personality of an individual is determined only by his nationality; an individuals personality is recognized only if his nationality is recognized In every kind of legal system, there are 2 kinds of rules: 1. those created in the interest of private individuals binding to persons who belong to the country by nationality; 2. those for the protection of public order binding to all within the territory (criminal laws-binding on all persons, citizens or aliens as long as they are within the country) MODERN DEVELOPMENTS Neo-statutory system
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CHAPTER III SOURCES OF PRIVATE INTERNATIONAL LAW Q: What are the primary sources of private international law? A: 1. 2. 3. 4. 5. 6. 7. 8. Codifications Special legislation Multilateral treaties International conventions Bilateral treaties Case law International customs Constitution Codifications Napoleonic Code of 1804 a. b. The Napoleonic Code of 1894 had a considerable influence on the different codes of Continental Europe. It made French Laws applicable to French nationals, wherever they may be as long as their status and their capacity are concerned. German Code of 1896 It contained a great part of its Conflict of Laws but deliberately left certain gaps respecting the law of contracts and quasi-contracts
follows the statutist school of thought Assumption that 2 or more independent laws are applicable to conflicts problem then proceed to devise some method to determine the law that shall prevail. A. Many adhere to Mancinis theory-mans national law should govern him wherever he may be XPN: 1. Concept of public order 2. The place governs the act 3. From the need of respecting the will of the contracting parties International System B. There exists or should exist, a single body of international rules that can and should solve all legal problems that involve a foreign element. A juridical act should in all countries be governed by the law of the place in which the act has its seat (Savigny). But while almost every adherent of the international system is agreed on this abstract principle, there are wide differences of opinion on the most appropriate law to govern each legal relation.
because it seemed impossible to draw up satisfactory general rules on the subject Q: What are the most outstanding codifications of PIL in the latter years? A: 1. 2. 3. The Polish Code of PIL of 1926 The Italian Code of 1938 The Greek Code of 1940 The Civil Code of the Philippines (R.A. 386) a. Devoted 4 articles to the subject although there are several provisions in other portions which are properly rules of Conflict of Laws. The 4 provisions in Chapter I are substantially a reinstatement of the provisions found in the CC of Spain, as influenced by the Napoleonic Code and Italian School of Mancini. The Code of Commerce which was extended to the Islands by Royal Decree on August 6, 1888 and took effect on December 1, 1888, also contains some important provisions affecting conflict of Laws problems. Special Legislation Q: Enumerate some special legislations containing rules on Conflict of Laws. a. A: 1. 2. 3. 4. 5. 6. 7. 8. Foreign Investment Act of 1991 (R.A. 7042) B.P. 68 or Corporation Code of the Philippines General Banking Act (R.A. 337) Trade Marks and Trade Names Law (R.A 166) Patent Law (R.A. 165) Carriage of Goods by Sea Act (Com. Act 65) Investment Incentives Act (R.A. 5186) Export Incentives Act (R.A. 6135) Multilateral treaties Q: What are the 2 methods of avoiding or at least minimizing conflicts between different legal systems of the world regarding matters as personal capacity, marriage, divorce, business associations, patents and copyrights, air travel, foreign judgments, and like matters? A: 1. To secure by international conventions or treaties the unification of the internal rules of the various countries or territorial units upon as many legal subjects as possible Examples: a. Warsaw Convention, as amended which regulates by uniform rules, as regards both jurisdiction and the law to be applied, the international carriage of persons pf goods by aircraft, which has become the fastest and most significant mode of international transportation today 2.
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The 1980 U.N. Convention on Contracts for the International Sale of Goods prepared by the UNCITRAL
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To unify the rules of PIL so that a case involving a foreign element may be decided in the same way, irrespective of the forum or place of litigation. Examples: a. b. c. Hague Conventions on sales of goods, conflict of nationality and domicile Geneva Conventions which laid down the rules of PIL with respect to bills of exchange and checks UNs 1954 Convention Relating to the Status of Stateless Persons Bipartite treaties
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Q: Give the common subjects of these treaties. A: 1. 2. 3. 4. Status of aliens Capacity of individuals and business organizations Judicial assistance Enforcement of foreign judgments Case law Rabel, an acknowledged authority to European laws said: Even in civil law countries, conflict of law rules to a large extent are judge-made. French and Belgian courts have to operate almost without written rules.
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Q: In the Philippines, what are the 3 categories of judicial decisions respecting Conflict of Laws? A: 1. Those which are based on assumption, though not expressed in clear language that only Philippine internal rules govern any problem; this is the most noticeable in cases involving contracts and personal status Those which adopt Anglo-American doctrines and precedents without regard to the provisions contained in the Civil Code; this is particularly true in cases involving validity of foreign divorces, at least prior to Barreto Gonzales v. Gonzales Those cases which attempted to introduce AngloAmerican rules and doctrines which view not only to filling up the gaps by the Civil Code, but also to merge them with established civil law principles.
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NOTE: It is only when the various legal systems have been compared, contrasted, and their respective basic assumptions brought out in the open, that the move for harmonizing and eventually unifying the rules of PIL may gain some headway. Q: What are the 2 kinds of Conflict of Laws in the U.S.? A:
1. 2.
Interstate Conflict of Laws governing conflicts between laws of the States of the American Union and International Conflict of Laws governing conflicts between a State of the Union and the Laws of other States.
Sempio-Dy (2004) Q: What are the sources of Conflicts of Laws? A:
Q: Discuss the various Conflict of Laws clauses found in the U.S. Constitution. A: Full faith and credit clause Privileges and immunities clause Interstate commerce clause Supremacy clause Sets forth the measure of respect which each State must give to the acts, records, and judicial proceedings of a sister state Imposes limits on the extent to which State may discriminate against the citizens of a sister State
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Direct sources a. b. c. d. Bilateral and multilateral treaties and international conventions; Constitutions and statutes Judicial decisions International customs
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Indirect sources a. b. Natural moral law; Writings and treatise of thinkers and famous writers and jurists on the subject.
Limits the power of a state to apply its local law to interstate transactions and upon the power of a State to determine what cases its courts shall hear Requires the states to give effect to Constitution, statutes, and treaties of the U.S. and to authoritative decisions of the Federal Courts in areas of national law International customs; Law of Nations
CHAPTER IV JURISDICTION AND CHOICE OF LAW Q: What are the 3 alternatives of the courts in case of conflicts case, that is to say, a case involving a foreign element? A: 1. Dismiss the case, either because of: a. Lack of jurisdiction b. Refusal to assume jurisdiction over the case Assume jurisdiction over the case and apply the internal law of the forum (i.e, the lex fori) Assume jurisdiction over the case and take into account or apply the law of some other state/s Judicial Jurisdiction Q: What is jurisdiction? A: It is the right of a State to exercise authority over persons and things within its boundaries, subject to certain exceptions. This is exclusive within and throughout the domain of the State, conditioned by the rights of other States over certain persons and things which may be found within the boundaries of the former. Thus, a state does not assume jurisdiction over travelling sovereigns, ambassadors, and diplomatic representatives of other States. Q: What is judicial jurisdiction?
There are certain rules of almost universal force which have come down through ages past and established themselves firmly. Example: the law of situs (the formalities of a legal act are governed by the law of the place where it is executed) Q: What are the matters which are delimited by the Law of nations? A: 1. 2. 3. Immunities of foreign sovereigns Diplomatic officials and public property Extent of the territorial jurisdiction over the marginal waters
2. 3.
Q: What is the effect of disrespect to these matters? A: It would constitute denial of justice and an outrage to humanity Constitution Example: Provisions on citizenship Indirect sources 1. 2. Natural law Works and treaties of jurists and writers
Q: What is the theory of national law? A: It presupposes a body of ideal precepts of universal validity for all peoples, at all times, and in all places, derived from the idea of what an ideal man would do and would not do, would claim and would concede as the claim of others, and arrived at by pure reason.
A: A state can take hold of any judicial matter it sees fit by making its courts and agencies assume jurisdiction over all kinds of cases brought before them, apart from certain exceptions. It is the authority of a State to exercise authority, through its courts and agencies, to hear and adjudicate cases. Simply stated, it is the power of a court or agency to hear and determine an issue upon which its decision is sought. Q: What are the factors that may affect judicial jurisdiction?
A: Jurisdiction over the person of the plaintiff 1. 2. 3. 4. 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 litigation is in the forum The fact that the parties are either citizens or residents of the State Acquired from the moment he invokes the aid of the court and voluntary submits himself by institution of the suit through proper pleadings Jurisdiction over the person of the defendant Acquired through the ff: a. Voluntary appearance b. Personal or substituted summons Principle of submission A person may in some cases voluntarily submit himself, expressly or impliedly, to the judgment of a court to whose jurisdiction he would not otherwise be subject. Coercive processes Personal or substituted service of summons is referred to as the Coercive processes provided by the law. Personal service Accomplished by: a. b. serving summons personally on the defendant, or If he refuses to receive it, by tendering it to him Substituted service Accomplished by: a. Definition: a. b. The competence of court To render a decision that will bind the parties to the suit Bases: Summons by publication a. b. c. d. e. f. g. h. i. j. k. Presence Domicile Residence Nationality or citizenship Consent Appearance in action Doing business in the State An act done in the State Causing an effect in the State by an act done elsewhere Ownership, uses or possession of a thing in the State Other relationships to the State which make the exercise of judicial jurisdiction reasonable Q: When is summons by publication allowed? A: 1. 2. 3. If the action is in rem If the action is quasi-in rem Involves the personal status of the plaintiffs Important notes: a. If a state obtains judicial jurisdiction over a party to an action, its jurisdiction continues throughout all subsequent By leaving copies of the summons at the defendants dwelling house or residence with some person of suitable age or discretion then residing therein By leaving copies of the defendants office or regular place of business with some competent person in charge thereof
Q: What is legislative jurisdiction? A: A term occasionally used to denote the power of a State to regulate or control, through rules of law, interests of persons in a thing, event or situation. Q: What are the types of judicial jurisdiction? A: Jurisdiction over the subject matter
service
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Definition: a. b. c. The power to hear and determine cases of the general class to which the proceedings in question belong and is conferred by the sovereign authority which organizes the court and defines its powers Conferred by: a. b. c. Conferred by law It cannot be conferred by consent of the parties or by their voluntary submission May be found: 1. Constitution 2. Judiciary Reorganization Act
Personal jurisdiction
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b.
proceedings which may arise out of original cause of action. The jurisdictional basis must exist at the commencement of the proceeding, it need not continuously do so thereafter.
Proceeding quasi-in rem Directed against the interests of particular persons in a thing; summons by publication is sufficient Example: a. Action for foreclosure of mortgage
Jurisdiction over the resactions in rem, quasi-in rem, and in personam
Jurisdiction over the res This is the jurisdiction over the particular subject matter in controversy, regardless of the persons who may be interested therein. Examples of action in rem a. b. c. Action for foreclosure of a mortgage Action for partition of land Action to quiet title to the property Proceeding in rem It is enforceable against the whole world, thus, service of summons by publication is enough In Pennoyer v. Neff, the Court said that A proceeding against the property is not a proceeding against the owners of that property. Thus, a property cannot be subjected to a courts judgment unless reasonable and appropriate efforts have been made to give the property owners actual notice of the action. But in the case Shaffer v. Heitner, the court held that all assumptions of court jurisdiction, regardless of whether the proceedings an in rem, quasi in rem, or in personam, must meet the standards of fair play and substantial justice. One basic principle underlies all rules of jurisdiction: a State does not have jurisdiction in the absence of some reasonable basis for exercising it, whether the proceedings are in rem, quasi in rem, or in personam. To be reasonable, the jurisdiction must be based on some minimum contracts that will not offend traditional notions of fair play and substantial justice. Examples: a. Admiralty case b. Land registration c. Annulment of a marriage Proceeding in personam Personal service of summons or voluntary appearance of the defendant, by himself or counsel is required. Due process only requires that if he is not present within the territory of the forum, he has certain minimum contracts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice Example: a. Action for damages I.
Analysis of the three methods Dismissing the case; the principle of forum nonconveniens
Jurisdiction and the due process clause
Q: When should the case be dismissed? A: If the court has no jurisdiction over a conflicts case, because of lack of jurisdiction over the subject matter or over the parties to the suit, the court must dismiss the case. Q: What is the principle of forum non conveniens? A: A court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of general venue statute. Courts of equity and of law occasionally decline, in the interest of justice, to exercise jurisdiction, where the suit is between aliens or non-residents, or where for kindred reasons the litigation can more appropriately conducted in a foreign tribunal. NOTE: This depends largely upon the facts of each case and is addressed to the sound discretion of the court. Q: What is the interest which must be considered? A: The private interest of the litigant such as: a. b. c. d. Access to sources of proof Availability of compulsory process for attendance of willing witnesses Possibility of view of premises All other practical problems that make the trial of a case easy, expeditious, and inexpensive. II. Application of internal or domestic law
Q: As a matter of pure technicality, no rule of PIL would be violated if the courts should decide to dispose of all cases, whether domestic or conflicts cases, according to the internal law of the forum. What is the reason for this? A: A sovereign is supreme within his own territory, and according to the universal maxim of prudence, he has exclusive jurisdiction over everybody and everything within that territory and over every transaction that is there effected. He can of course choose to refuse to consider any law but his own. Q: What are the instances when the forum has to apply the internal or domestic law in cases involving conflicts problems? A:
1. 2. 3.
Where the application of internal law is decreed Where there is failure to plead and prove foreign law Where a case involves any of the exceptions to the application of foreign law Where the application of internal law is decreed
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is kept authenticated by the seal of his office
Where a case involves any of the exceptions to the application of foreign law Q: What are the exceptions to this rule?
Examples: A: 1. 2. Where the land involved in the suit is located in the forum, the lex situs is normally applied to the case Under Art. 80 of the FC, in the absence of a contrary stipulation in the marriage settlements, the property relations of Filipino spouses shall be governed by Philippine laws, regardless of the place of the celebration of the marriage and their residence Where there is failure to plead and prove foreign law GR: Our courts do not take judicial notice of foreign law Ratio: Only domestic laws fall within the scope of judicial notice Thus, if not properly pleaded and proved, the assumption is that foreign law is the same as the local or internal law. Q: How should the foreign law be proved? A: It depends on the rules of evidence of the forum. Under Philippine laws, there is distinction between written and unwritten law. UNWRITTEN LAW Examples Statute or codal provision Judicial decisions and customary law How proved May be evidenced by an: May be proved by the: a. official publication a. oral testimony of the thereof or expert witness b. by a copy attested to b. by printed and by the officer having published books of the legal custody of reports of decisions of the record or by his the country involved custody c. and must be accompanied with a certificate that such officer has the custody: 1. secretary of embassy or legation 2. consul-general 3. consul 4. vice-consul 5. consul agent 6. officer in the foreign service of the Philippines stationed in the foreign country in which the record WRITTEN LAW 6. 7. 8. 1. 2. 3. 4. 5. When the enforcement of the foreign law would run counter to an important public policy of the forum Where the application of foreign law would infringe goof morality as understood in the forum When the foreign law is penal in nature When the foreign law is procedural in nature When the question involves immovable property in the forum When the foreign law is fiscal or administrative in nature Where the application of foreign law would involve injustice or injury to the citizens or residents of the forum Where the application of foreign law would endanger the vital interests of the State Sempio-Dy (2004) Q: How does one deal with a problem in Conflict of Laws? A: a. Determine if the court has jurisdiction over the case; i. Court will determine whether it should assume jurisdiction over the case or dismiss it on ground of forum non conveniens; It is the law of the forum that determines whether the court has jurisdiction or not; Determine whether to apply the internal law of the forum or the proper foreign law, considering the attendant circumstances.
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b.
If it has no jurisdiction, the case should be dismissed on that ground
Q: How does the court determine whether it has jurisdiction over the case? A: There are 3 kinds of jurisdiction: i. ii. iii. Jurisdiction over the subject-matter; Jurisdiction over the person; Jurisdiction over the res. Jurisdiction over the subject-matter a. b. c. d. Jurisdiction is conferred by law; Defines as the power to hear and determine cases of the general class to which the proceedings in question belong; It cannot be conferred by consent of the parties or by their voluntary submission; It must be invoked by filing the proper complaint or petition with the court;
10
e.
f.
Element which must be considered in determining the matter of jurisdiction: possible enforceability of its decision in foreign states, subject to the rights of said states; It is the power of the court of the forum to render a decision that will create legal rights and interests which other states will recognize and enforce. Jurisdiction over the person
Q: What are actions quasi in rem? A: A: Its purpose is neither to impose a personal liability or obligation upon anyone, nor affect the interests of all persons in a thing, but to affect the interests of the particular persons in a thing; In such case, the court may render valid judgment when it has jurisdiction over the particular persons whose interests are affected; NOTE: In actions in rem, quasi in rem, or those involving the personal status of the plaintiff, extraterritorial service of summons by publication is allowed. Q: How may service of summons be effected? A: In actions in personam, service of summons may be by personal service of substituted service. Service by publication would not be sufficient whether the defendant is in the Philippines or not. Q: When is service by publication allowed? A: 1. 2. 3. If action is in rem; If action is quasi in rem; If the action involves the personal status of the plaintiff (Sec. 15, Rule 14).
a. b. c.
d.
e.
f.
It is the competence or power of a court to render a judgment that will bind the parties involved; Plaintiff- acquired the moment he invokes the power of the court by instituting the action by proper pleading; Defendant- acquired when he enters his appearance or by the coercive power of legal process exerted by the court over him. Rule of submission0 deemed to consent to its exercise of jurisdiction over his original cause of action including counter-claims filed by the defendant, and he would then be subject to the subject to the jurisdiction of the court; As for defendant, his personal appearance or appearance by counsel is tantamount to his giving consent to the courts exercise of jurisdiction over his person, except is his appearance of that of counsel is for the sole purpose of questioning the jurisdiction of the court; Jurisdiction over the defendant may be acquired through his voluntary appearance or by personal or substituted service of summons on him.
Q: When may extraterritorial service of summons be effected? Q: What do you mean by personal service? A: Sec. 15. Extraterritorial service. A: a. Sec. 6. Service in person on defendant. Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person, or, if he refuses to receive and sign for it, by tendering it to him. Q: What do you mean by substituted service? c. A: Sec. 7. Substituted service. d. If, for justifiable causes, the defendant cannot be served within a reasonable time as provided in the preceding section, service may be effected (a) by leaving copies of the summons at the defendant's residence with some person of suitable age and discretion then residing therein, or (b) by leaving the copies at defendant's office or regular place of business with some competent person in charge thereof. Jurisdiction over the Res Q: How may extra-territorial service be effected? 1. It is jurisdiction over the particular subject-matter in controversy regardless of the persons who may be interested therein; The basis is the presence of the property within the territorial jurisdiction of the forum, even though the court may not have personal jurisdiction over the persons whose interests in the property are affected. A: By leave of court, it may be effected: a. b. By personal service; By publication but a copy of the summons and the order of the court must be sent by registered mail to the defendants last known address; b. When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or ; When the defendant does not reside and is not found in the Philippines, and the action relates to, or the subject of which is, property within the Philippines (real or personal), in which the defendant has or claims a lien or interest, actual or contingent, When the defendant is a non-resident but the subject of the action is property located in the Philippines r in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, and When the property of a non-resident defendant has been attached in the Philippines.
In the last case, while a writ of attachment may be issued by the court upon application, said writ cannot be implemented until the court has acquired jurisdiction over the non-resident defendant for without such jurisdiction, the court has no power and authority to act in any manner against the defendant, and any court order to that effect will not bind said defendant.
2.
11
c.
In any other manner that the court may deem sufficient (by registered mail.
1.
NOTE: For illustrations, please see pp. 8-10 of Sempio-Dys group. Q: Explain why the court may refuse to exercise jurisdiction over a case on the basis if the principle of forum non conveniens. A: a. b. c. Evidence and the witness may not be readily available in the forum; Court dockets may already be cloggedto avoid hampering of the speedy administration of justice; Belief that the matter can be better tries and decided in another jurisdiction: i. Main aspects of the case transpired there; ii. Material witnesses have their residence there; To curb the evils of forum-shopping: i. Secure procedural advantages; ii. To annoy or harass the defendant Forum has no particular interest in the case: i. Parties are non-residents of the forum; ii. Are residents elsewhere; iii. Subject-matter of the case involved elsewhere. Inadequacy of the local judicial machinery for effectuating the right sought to be enforced by the plaintiff; Difficulty of ascertaining the foreign law applicable.
2.
If the law is written: a. Official publication; b. Section 25. What attestation of copy must state. Whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. (26a) If the law is unwritten: a. b. Oral testimony of expert testimony; or Printed and published booked of reports of decisions of the country involved, if proved to be commonly admitted in its courts.
d.
Q: What is the doctrine of processual presumption? A: It means that when the proper foreign law has not been proved, the court of the forum may presume that said foreign law is the same as its local or domestic law, which it can now apply. Q: When a case involves any of the exceptions to the application of a foreign law, the rule is that the foreign law cannot be applied and the courts should instead apply the domestic or local law. What these exceptions? A:
e.
f. g.
Q: When does the principle apply? A: The doctrine should generally apply only if the defendant is a corporation for if the individual is an individual, the proper forum may not be able to acquire jurisdiction over him and thus leaving the plaintiff without any remedy. Q: When is the court bound to apply the internal or domestic law? A: 1. 2. 3. When the law of the forum expressly so provides in its conflict rules; When the proper foreign law has not been properly pleaded and proved; When the case involves any of the exceptions to the application of the proper foreign law. b.
a.
c.
Q: Give instances which require the application of the Philippine internal or domestic law. A: Lex situswhenever land involved in the suit is located in the Philippines; 2. Regarding the property relations of the spouses; 3. When a Filipino father with American children dies, his succession shall be governed by Philippine law; 4. If a will executed by an alien abroad is revoked our country, the revocation must comply with the formalities of Philippine law. Q: How is a foreign law proved under the Rules of Court? A: 1.
d.
e.
f. g. h.
When the application of the foreign law would run counter to a sound and established public policy of the forum; i. Divorce law ii. Joint will iii. Incestuous marriages and those void by reason of public policy When the foreign law is contrary to the almost universally conceded principles of morality (contra bonos mores); i. Prostitution; ii. Agreements that corrupt the proper administration of justice or reward crimes; iii. Transactions that infringe good morality When the foreign law involves procedural matters; i. No vested rights in procedural law XPN: The law is both procedural and substantive: Prescription and Statute of Frauds When the foreign law is a penal in character; ii. Principle of territoriality iii. A penal clause in a contract entered into abroad may be enforced here because such clause is not criminal in nature but only provides for liquidated damages. When the law is purely fiscal or revenue producing or administrative in nature; i. We are not bound by foreign revenue and administrative laws; When the foreign law might work undeniable injustice to the citizens or residents of the forum; When the application of the foreign law would endanger the vital interests of the State; When the case involves real or personal property located in our country (Lex situs or lex rei sitae).
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CHAPTER V APPLICATION OF FOREIGN LAW AND THE VARIOUS CHOICE-OFLAW THEORIES Q: Why should a state apply a foreign law? A: Application of the foreign law having the closest and most dominant connection with an act or event permits the parties to plan their transactions accordingly and discourage shopping around by a plaintiff for a favorable forum, protects their rational and justified expectations, facilitates the determination of the applicable law, answers the need of the modern international system, and achieves the long-range of goal of uniformity of result wherever the forum may be located. Hence, the ultimate explanation for the resort to foreign law should be sought in the ends of justice. Q: What are the theories that justify the application of the foreign law? Enumerate and explain the various theories. A: THEORY Theory of Comity DISCUSSION The application of foreign legal systems in cases involving foreign element is proper because their non-application would constitute a disregard of foreign sovereignties, a lack of comity towards foreign states. Those who adhere to the principle of territoriality would state the theory of comity in another way: the law of one state or nation cannot operate in another State or nation, except by comity. Q: What is comity? A: It signifies courtesy of one State towards another. It involves the idea of one State stepping back, and as a matter of courtesy, allowing the law of another state to operate within its territory. It is the reciprocal courtesy which one member of the family of nations owes to others. It presupposes friendship. It assumes the prevalence of equality and justice. Fallacies of theory of comity 1. It is based on the erroneous idea that a State has a great interest in the application of its laws by other States. The application of foreign law does not spring from the desire of the sovereign of one State to show courtesy to other State whose law is being applied. Rather, it flows from the impossibility of otherwise determining whole classes of cases without gross inconvenience and injustice to litigants, whether natives or foreigners. If foreign law were to be applied as a
matter of option, it would be impossible to build up a definite body of rules of PIL. The determination of when foreign law would be recognized and applied would not be settled by rules but by unregulated discretion. NOTE: The principle of comity is interchangeably used with principle of reciprocity. But in the case of Hilton v. Guyot, the reciprocity was employed with a note of vengeance, thus giving rise to the doctrine of retaliation. Q: Describe the nature of comity as discussed in Johnson v. Companie Generale Transatlantique? A: Comity is not a rule of law, but it is a rule of practice, convenience and expediency. It is something more than courtesy, since it has substantial value in securing uniformity of decision and discouraging repeated litigation of the same question. It therefore rests not on the basis of reciprocity, but rather upon the persuasiveness of the foreign judgment. Sempio-Dy, 2004 GR: No foreign law would be allowed to operate in another state. XPN: Comity of nationsreciprocal courtesy which the members of the family of nations owe to one another. Q: What is comity? A: It is neither a matter of absolute obligation, nor of mere courtesy and good will. It is a recognition which one nation allows within its territoryto the legislative, executive or judicial acts of another nation, having dueregard both to int'l duty and convenience, and to the rights of its own citizensor other persons who are under the protection of its laws (Hilton v. Guyot). a. b. The comity based on reciprocity The comity based on the persuasiveness of a foreign judgment
Sec. 48. Effect of foreign judgments or final orders. The effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order is as follows: (a) In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title to the thing; and (b) In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the
2.
3.
13
parties and their successors in interest by a subsequent title. In either case, the judgment or final order may be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. (Rule 39) This is based on the concept of territoriality, under which the court can apply only its own territorial law. It cannot recognize foreign laws or enforce foreign judgments. It is one of the tenets of justice that rights acquired in one country must be recognized and legally protected in others. It is obvious that once it is assumed that no law can be given extraterritorial force and effect, it is an inconsistency to talk about the enforcement or application of foreign law, even through comity or courtesy. The purpose of conflict of laws is to give effect to rights acquired under the protection of foreign law, and not to enforce foreign law. Q: Discuss the formulation under Mc Donald v. Railway.8 A: When a right is claimed upon acts occurring in another country, courts look to the law of the country, not to extend the binding force of a foreign law beyond the territorial limits of the sovereignty to which it belongsit is not the foreign law but the rights acquired under it which are enforced by the courts of another country. Q: Justice Cardozo made a profound remark in Loucks v. Standard Oil Company of New York. Discuss the application of the vested rights theory. A: A foreign statute is not a law in this state, but it gives rise to an obligation, which if transitory, follows the person and may be enforced wherever the person may be found. No law can exists as such except the law of the land; but it is a principle of every civilized law that vested rights shall be protected. To the extent that it is the duty of every civilized court to protect existing rights though vested abroad, the theory is justified. NOTE: a. A tort committed in one state creates a right of action that may be sued upon in another unless public policy forbids A right of action is property. If a foreign statute gives the right, the mere fact that we do not give a like right is no reason for refusing to help the plaintiff in getting what belongs to him. The courts are not free to refuse to enforce a right at the pleasure of the Local theory law
judges to suit the individual notion of expediency or fairness. Fallacies of Protection of vested rights theory a. When it is stated by the vested rights theorists that it is not the foreign law but the rights acquired under it which are enforced by the courts of the other country, there is at once involved a selfdelusion in reasoning. The obligation to recognize the right implies the obligation to apply the foreign law. Not all the rights acquired under foreign law are protected elsewhere, nor is their protection always desirable. The Protection of rights and interests is not the only consideration to be taken into account. The issue very often is whether a disability existing under one law should be applied by a foreign court. The law protects not only vested rights constituted abroad but often also foreign legal relationships, capacities or powers out of which right or the extinction of duties and charges or the invalidity of acts may arise. It is difficult and impracticable to apply the theory where the material aspects of a transaction or event touch 2 or more States equally or almost equally. Sempio-Dy, 2004 Under this theory, our courts enforce not the foreign law or judgment but the right or rights that have been vested under the law or judgment. If a foreign law gives a person a right, the mere fact that the law of the forum does not give him a similar or the same right is no reason to refuse to help him get what belongs to him. XPN: If the foreign law is against public policy of the forum. The court of the forum recognizes and enforces a local right, i.e., one created by its own law. It creates its own local right, but fashions it as nearly possible upon the law of the country in which the decisive facts have occurred. Origin This theory has been accepted only by a minority of courts in the U.S. Its origin is traceable to the Italian jurist, Anzilotti, who once maintained that a foreign rule cannot be applied unless it has been appropriated by the state of the forum and transformed into domestic rule. Q: What is the practical merit of the local law
Protection of vested rights theory
b.
c.
d.
e.
b.
c.
14
theory? A: A: By treating foreign law not as law but as fact and considering it along with other facts and giving it whatever significance it deserves in a particular case, the court adopting the theory is able to take into account social and economic considerations and the demands of expediency in the case before it. Sempio-Dy, 2004 According to this view, we apply the foreign law not because it is foreign but because our own law by applying a similar rule requires us to do so; hence, it is as if the foreign law has become part of our own internal or domestic law. E.g. Article 16, par. 2requires the application of national law of the deceased in the matter of his testate or intestate succession. Sempio-Dy, 2004 Theory Harmony laws of of a. Identical or similar problems should be given identical or similar solutions, thus resulting in harmony of laws; Certainty of solutions are of particular importance in areas where the parties are likely to think in advance of the global consequences of their transactions; e.g. transactions involving real property, persons civil status Application of the same or similar solutions prevents the bad practice of forum-shopping. Purpose of laws is the dispensation of justice; Defect: Different persons may have different ideas of what is just. JURISDICTION-SELECTION This raises the question whether any rule, formulated a priori, can usefully and justly be applied to determine which substantive norm shall be the basis of decision in a conflicts case RULE SELECTION Assets that the choice of law rules serve no constructive purpose for they purport to bind a court to decide a case on the basis of a governing law whose content and relation to the issue in dispute may make its application in the particular instance an exercise in futility or positive injustice. Emphasizes a choice between different substantive rules of law, in light of the policies at issue. This is more favored.
Thus, this requires the court to apply the law of the country or jurisdiction chosen by the conflicts rule, irrespective of the content of the particular rule of law selected. Example: The rule that the validity of contract shall be governed by the law of the place or jurisdiction where the contract was made (lex loci contractus)
b.
Q: What are the various theories under the U.S. Conflicts of Law. A: THEORY The Second Restatement and the Law of the Most Significant Relationship Theory DISCUSSION Where there is no applicable statute or codal provision, these basic policies should be kept in mind: a. Choice of law rules should be designed to make the international and interstate systems work well b. The court should apply its own local law unless there is good reason for not doing so c. The court should consider the purpose of its relevant local law rule in determining whether to apply its own law or law of another state. d. Choice-of-law rule should seek to achieve certainty, predictability, and uniformity of result. e. The court should seek to protect the justified expectations of the parties f. The court should seek to apply the law of the State of the dominant interest NOTE: As a general proposition, the State whose interests are most deeply affected should have its law applied. The law of the situs is applied to determine the validity and effect of the conveyance of land. Of course, as to which is the State of dominant interest may depend upon the issue involved in a given case. g. The court should seek to further the fundamental policy underlying the
c. Theory justice of a. b.
Revolution in U.S. Conflicts Law Q: Describe the usual method of disposing of cases in the Conflict of Laws. A: 1. The court or tribunal is first to characterize or identify the legal category into which the case before it fallssuch as contracts, property, domestic relations, tort, succession and so forth. Apply the proper connecting factor for that category of case in order to choose the State or territorial jurisdiction whose legal system will determine the parties respective rights, duties, and other legal relations.
2.
Q: Give examples of escape devices A: 1. 2. 3. Renvoi Public policy Morality
Q: What are the 2 themes concerning choice of law?
15
h.
particular field of law. The contract should seek to attain justice in the individual case
Q: In the field of contracts, what are the 2 policies which are more relevant? A: a. Choice-of-law rule should seek to achieve certainty, predictability, and uniformity of result. The court should seek to protect the justified expectations of the parties Cavers Principle of Preference
If the forum is disinterested, but an unavoidable conflict exists, and the court cannot with justice decline to adjudicate the case, it should apply the law of the forum, at least if the law corresponds with the law of one of the other states. Also, it may decide the case by a candid exercise of legislative discretion. Q: When do you apply the Cavers Principle of Preference? A: When the analysis of the purposes underlying the various competing laws indicates that there is a genuine conflict that cannot be easily avoided. This Cavers Principle of Preference must be used by the courts as guides for decision for the purpose of satisfying the demands of justice in particular instances. Q: Explain Cavers Principle of Preference vis--vis vested rights theory. A: Unlike vested right theorists, David Cavers maintains that the choice of law should not be the result of the automatic operation of a rule or principle of selection but a search for a just decision. The principle of preference provides solutions which are just not only because they provide a fair accommodation of conflicting state policies but because they afford fair treatment to individuals who are caught in conflict between 2 state policies. The approach aims at solutions that are the rational elaboration and application of the policies and purposes underlying specific legal rules and the legal systems as a whole. Q: Discuss the process under the Functional Approach. A: 1. Locate the concerned jurisdiction
5.
b.
Q: How about in cases of land questions? A: a. Choice-of-law rule should seek to achieve certainty, predictability, and uniformity of result. The court should seek to protect the justified expectations of the parties The court should seek to apply the law of the State of the dominant interest
b. c.
Q: How about tort cases? A: The court should seek to apply the law of the State of the dominant interest StateInterest Theory Focus must be put to the policies underlying the internal laws of 2 or more States in apparent conflict. Prof. Brainerd Currie suggested the following guidelines: 1. A court must inquire into the policies expressed in the respective laws, and into the circumstances in which it is reasonable for the respective States to assert an interest in the application of those policies. The courts must employ the ordinary processes of construction and interpretation If the court finds that one State has an interest in the application of its policy in the circumstances of the case and the other has none, it should apply the law of the only interested state. Example: Lex situs rule 3. If the court finds an apparent conflict between the interests of States, it should reconsider. A more moderate and restrained interpretation of the policy of one State or the other may avoid conflict If upon reconsideration, the court finds that a conflict between legitimate interests of the 2 states is unavoidable, it should apply the law of the forum
The Functional Approach (Developed by Prof. Arthur Von Mehren and Donald Trautman)
Q: What is concerned jurisdiction? A: One that has expressed an interest in relating an aspect of the multistate transaction in question. Construct for each concerned jurisdiction a regulating rule that takes account both of relevant policies expressed through jurisdictions domestic rules and of policies peculiar to multistate transactions 3. Apply the rules of the jurisdiction predominantly concerned 4. For conflicts that persist, resolution may be possible by applying the most salutary rule from the standpoint of facilitating multistate activity Q: What are the basic considerations under this theory? 2.
2.
4.
Choiceinfluencing considerations
16
A: 1. 2. 3. 4. 5. Predictability of results Maintenance of interstate and international order Simplification of judicial task Advancement of the forums governmental interests Application of the better rule of law
A: The forum should go beyond the traditional method of choosing between one jurisdiction and another. 1. 2. 3. It should examine the competing internal laws of the States involved, Analyze their respective interests Evaluate the policies that are at stake, so it can make a rational decision as to what law to apply in order to do justice to the parties and save the ends of society in a modern, interrelated world. Sempio-Dy, 2004 NATURE AND COMPOSITION OF CONFLICTING RULES Q: Distinguish between purely internal provision of law from a conflicts rule or provision in conflicts of laws. A: Purely internal provision of law a. Governs a domestic problemone without foreign element; b. Authorizes, commands or prohibits certain act or mode of conduct; c. E.g. Art. 796 Conflict rule It is a provision found in our own law which governs a factual situation possessed of foreign element; E.g. Art. 16-real property as well as personal property is subject to the law of the country where it is situated.
Q: What is determining consideration under the better rule concept? A: Whether one of the competing legal rules, compared with the other domestic rule, serves the modern requirement of the international order, or whether it is anachronistic in that it is behind the times. Q: What are the fields used by Rabel in his study of the comparison of the various legal systems? A: 1. 2. 3. 4. 5. 6. 7. Persons and domestic relations Obligations Property Succession Contracts Torts Business associations
Comparative approach (By Dr. Ernest Rabel)
Q: What are the 2 kinds of conflict rules? Rabel brought out their similarities and dissimilarities, examined their purposes and effects, showed to what extent unification or reconciliation is feasible, and proposed specific solutions in the context of the needs and requirements of a growing international community. Though the convenient forum may apply its own law as a basic method, it should not hesitate to apply a foreign law where the legislative or settled judicial rules of choice of law or the policy of the forums domestic rules require a different answer. Equal justice under the law requires that the decision be the same wherever the claim is brought. A conflicts problem should receive the same treatment and disposition wherever the forum may happen to be. A: 1. One-sided rule a. Indicates when Philippine law will apply b. Examples: i. Article 15 of the NCC- laws relating to family rights and duties, status, condition and legal capacity of persons; ii. Article 818 of the NCC- joint wills All-sided or multilateral rule a. Indicates whether to apply the local law or proper foreign law; b. Examples: i. Art. 16- real property as well as personal property is subject to the law of the country where it is situated; ii. Art. 17-forms and solemnities of contracts, wills and other public instrumentsif the contract was executed in the Philippines, its form and solemnities are governed by Philippine law. if it was executed in a foreign country, such countrys law will apply. c. Art. 16 has been applied by the SC even to persons who are citizens of countries following the domiciliary theory like Americans.
Convenient Forum Theory
The Harmony Treatment and Uniformity of Result Theory
2.
The application of foreign law in the Philippines; A proposed Approach Q: What is the so-called policy-oriented approach? A: Such approach is responsive to the demands of the international system and aware of the policy considerations that should influence the choice of law. This will require an analysis of every given problem in terms of issues involved, the identification and evaluation of the social and economic interests of the State that are concerned with the parties or the transaction, and the spelling out of the policy values considered important in the solution of the problem. Q: What is the proper method in case of conflict of laws problem.
Q: What are the parts of every conflicts rule?
17
A: 1. Factual situation- set of facts or situation presenting a conflicts problem because there is a foreign element involved; the legal consequences of which are determined in the second part; and The point of contact or connecting factor- the law of the country with which the factual situation is most intimately connected. NOTE: The rules for the ascertainment of foreign law are necessarily different from the rules on the determination of Philippine law. Q: Is every person presumed to know the domestic law? A: Yes. Q: Is that presumption applicable to foreign law? A: No. Article 3 of the NCC which says that Ignorance of the law excuses no one from compliance therewith refers to domestic law, not to foreign law. Q: How would you consider ignorance of a foreign law? a. Article 1763 of the NCC- The law of the country to which lost cargoes are to be transported or the law of their destination, not the law of the country where the lost cargoes were loaded or the place of embarkation.; Article 1039- capacity to succeed is governed by the law of the nation of the decedent. A: Ignorance of a foreign law is ignorance of fact, not ignorance of the law. How foreign law is ascertained Continental Europe CHAPTER IV ASCERTAINMENT AND PROOF OF FOREIGN LAW Q: Distinguish rules of substance from rules of procedure. A: RULES OF SUBSTANCE Refer to methods which concern the legal effect of those facts after they have been established RULES OF PROCEDURE Concern methods of presenting to a court the operative facts upon which legal relations depend Refers to the available judicial machinery and its mode of operation Regulates such matters as: a. Venue b. Form of action c. The sufficiency of pleadings d. Rules of services of processes e. Admissibility and effect of evidence f. Method of appeal g. Mode of execution of judgments NOTE: Common law courts are not presumed to know the laws of foreign states. According to the common law, the law of any other state than the law of the forum is not law at all, but fact. Since foreign law is a matter of fact, it should be pleaded by the party invoking it and proved by evidence supplied by experts on the said law to a jury of laymen. Development of Philippine Law GR: Our courts cannot take judicial notice of a foreign law XPN: Where our courts are evidently familiar with foreign laws such as the Spanish Civil Code and allied legislation, common law doctrines and rules from which many of our laws are derived (Delgado v. Republic, GR L-2546, 1950) NOTE: This exception does not nullify the general rule that foreign law must be pleaded and proved. There must in every case be an allegation in the pleading about the existence of the foreign law, its import and legal consequences on the event or transaction in issue. Proof of foreign law Q: How should the foreign law be proved? A: It depends on the rules of evidence of the forum. Under Philippine laws, there is distinction between written and unwritten law. WRITTEN LAW Statute or codal provision Foreign law limited to substantive aspects UNWRITTEN LAW Examples Judicial decisions and customary law It is the duty of the judge to investigate the foreign law which he is to apply, and in the performance of his duty he may require assistance from the parties litigant. Foreign law is likely any fact that must be pleaded and proved by the party invoking it.
2.
NOTE: The first part raises while the second part answers or solves a legal question. Examples:
b.
Philippines, America, England
The forum applies its own procedural law Q: The traditional rule is that the forum will apply its own internal procedural law on all these non-substantive matters. What is the reason behind this? A: Practical necessity and simplification of the judicial task constitute the rationale of the well-known rule that the forum applies its own procedural law.
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How proved May be evidenced by an: May be proved by the: a. official publication a. oral testimony of the thereof or expert witness b. by a copy attested to b. by printed and by the officer having published books of the legal custody of reports of decisions of the record or by his the country involved custody c. and must be accompanied with a certificate that such officer has the custody: 1. secretary of embassy or legation 2. consul-general 3. consul 4. vice-consul 5. consul agent 6. officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept d. authenticated by the seal of his office Williamette Iron and Steel Works v. Muzzal (6 Phil. 471, 1935) Sec. 25 of Rule 132 does not exclude the presentation of other competent evidence to prove the existence of a foreign law. The SC considered the testimony under oath of an attorney-at-law of San Francisco, California who quoted verbatim a section of California Civil Code and who stated the same was in force at the time the obligations were contracted, as sufficient evidence to establish the existence of said law. Effect of failure to plead or prove foreign law Q: What are the effects of failure to plead or prove foreign law? A: 1. The court may dismiss the case, with judgment for defendant, on the theory that the plaintiff relying on foreign law had failed to prove an essential part of his case. The court may not dismiss the case, but it may hold that where the foreign law is not properly pleaded or proved, the presumption of identity or similarity arises, namely, that foreign law is the same as the domestic law. This has been followed by the Philippine SC. The court may not dismiss the case, but it may assume that by failing to plead or prove foreign law, the parties acquiesced in having their controversy determined by law of the forum.
the foreign law and then may seek to supplement this information through its own research. Sempio-Dy, 2004 CHARACTERIZATION OF CONFLICTING RULES Q: What do you mean by characterization? A: It is the process of assigning a certain set of facts or factual situation to its proper or correct legal category. These categories may be family relations, contracts, torts, succession, property, etc. Q: What makes the problem of characterization or classification difficult? A: It arises from the fact that a conflicts situation or problem may be characterized by the lex fori differently from the characterization of lex causae or the law of the state with which to act or transaction is mostly connected). Q: Suppose the problem of characterization involves a determination as to whether the matter pertains to substantive or to procedural law. How is the problem to be resolved? A: a. There is no question that all procedural matters are governed by the lex fori. Thus, matters of service of summons, joinder or splitting of cause of action, how to appeal, etc. governed by the law of the forum; The modern trend is to consider prescriptive periods or the Statute of Frauds that the parties had in mind at the time transaction took place. Then, apply the intended law in its totality including its period of prescription and its Statute of Frauds; XPN: If the subject-,matter is property located in the Philippines, in which case Philippine law applies.
b.
Q: Suppose Bebeng, an English man, barrowed money from Ayel, another English man, in England, evidenced by a promissory note. Let us assume that under English law, the period to sue on the promissory note is 4 years. In the Philippines, the period of prescription is 10 years. Has the action prescribed if the action is filed in the Philippines? A: Yes because English law was evidently intended by the parties to govern their transaction.
2.
CHAPTER VII EXCEPTIONS TO APPLICATION OF FOREIGN LAW Nature and basis of exceptions For the court to assume jurisdiction and apply its internal law, despite lack of any significant connection with the factual transaction in the conflicts case before it, would not only constitute an example of extreme provincialism but may result in gross injustice, particularly if the decision is taken against a defendant who has not chosen the forum.
3.
NOTE: A court will rarely seek to ascertain the content of a foreign law solely by means of its own research. Rather, the court will usually require the parties to supply the basic information regarding
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Q: Under the traditional view, what are the instances when the foreign law is not applied in the forum? A: 1. 2. Where its enforcement would run counter to some important public policy of the forum When its application would lead to an infringement of good morality in the wider sense of the term, as understood in th forum When the foreign law is penal in nature When the foreign law is procedural in nature When the question involves immovable property in the forum When the foreign law is fiscal or administrative in nature Where the application of foreign law would involve injustice or injury to the citizens or residents of the forum Where the application of foreign law would endanger the vital interests of the State
5.
Foreign state property
Q: According to Savigny, a German jurist, what are the 2 kinds of rules of an imperative character found in any legal system? A: 1. 2. Those rules that are enacted merely for the sake of persons who are the possessors of rights Those rules that are not merely made solely for the benefit of individuals but rest on moral grounds or on public interest
3. 4. 5. 6. 7. 8.
Q: Differentiate these 2 kinds of rules. A: Rules that are enacted merely for the sake of persons who are the possessors of rights Becomes inapplicable where according to the rules of Private International Law, a foreign legal system governs the case Rules that are not merely made solely for the benefit of individuals but rest on moral grounds or on public interest Intended to be applied in all circumstances and cannot be rendered ineffective by foreign laws and judgments.
NOTE: These exceptions are not mutually exclusive; most of them overlap or are combined with one another. Exceptions recognized by Philippine law NOTE: Private International Law is merely a part of our municipal law. Hence, a Philippine court cannot possibly disregard the public policy, the norms of morality, and the vital interest that underlie the laws of the land. Art. 17 (3) of the NCC
Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws and judgments promulgated or by the determinations or conventions agreed upon in a foreign country.
NOTE: The forums public policy or interest, whenever it is clearly at stake in a given conflicts problem, should take precedence over the application of the laws of other states. Where its enforcement would run counter to some important public policy of the forum Q: What is public policy? A: It is the manifest will of the State. Q: Where is public policy manifested? A: 1. 2. Constitution Legislative measures
Philippine laws which restrain or prohibit the doing of certain acts within the country, and other local laws designed to uphold public order, public policy and good customs cannot be displaced by foreign laws or judgments, or by determinations or conventions agreed upon elsewhere. Principle of territorial sovereignty GR: Penal laws are territorial and should apply to all persons and things within our territory XPNs: 1. 2. Limitations under the Law of Nations Treaties
NOTE: A mere dissimilarity between foreign law and local law will not render the enforcement of the foreign law violative of the forums public policy. Q: What are the 2 kinds of public policy? A: 1. 2. One which operates no matter where the event or transaction takes place One which operates only where the event or transaction takes place within the forum and is not offended if the transaction is completed abroad.
Q: Who are exempted from the local jurisdiction? A: 1. 2. 3. 4. Heads of State Diplomatic representatives Foreign public vessels Foreign merchant vessels exercising the right of innocent passage
NOTE: The determination of what public policy of a State is would not be difficult where the statute or law is so clearly worded as to govern act or transactions occuring abroad. Example: Prohibition against joint wills
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Q: What if the law or statute contains no definite reference to transactions involving a foreign element? A: The courts are constrained to weigh the importance of recognizing a foreign law, mainly for the sake of doing justice to the parties who molded their conduct to conform to the requirements of the law of another State that has a significant relationship to their acts, as against desirability of enforcing what is conceived to be the local public policy. Q: What are the different ways whereby the court may use public policy in the determination of a case? A: 1. The court may refuse to entertain the case because enforcement of the action is against its public policy and dismiss the case without prejudice The forum, though it has no other connection with the case except for the institution of the suit, may entertain the case but apply its own domestic law to decide the controversy in favor of the plaintiff The forum which has sufficient connection with the factual event or transaction may entertain the case but invoke its own public policy in order to apply the forums domestic law.
NOTE: A marriage may be void for some purpose and yet be valid for other purposes. When the foreign law is penal in nature Mr. Justice Marshall said: No society takes concern in any crime but what is hurtful to itself. In the enforcement of the rules of public order of a State, other States are not concerned and should not, as a general rule, interfere. It is an obvious principle that an act of sovereignty can have no legal effect in the territory of another State. Q: Distinguish enforcement from recognition of foreign penal law. A: A state may recognize foreign penal laws for various purposes though it will not directly enforce such in its jurisdiction. Q: What is the test to determine whether an action is penal or not? A: The characteristic of a penal action is that it is one on behalf of the government of the community, not an action for remedying a wrong done to an individual. This is the restrictive test. Q: What is the Cosmopolitan principle which is adhered to by Austria, Italy, Norway, and Russia? A: One state has no concern in the enforcement of the penal laws of another state. When the foreign law is procedural in nature GR: Matters of remedy or procedure are to be determined by the internal law of the forum, regardless of where the trasaction occurred out of which the claim in question arose (Foreign procedural law is generally not enforced or recognized in the forum). Q: What is the rationale behind this rule?
2.
3.
NOTE: Public policy is relative. It varies with changing ideals, relatively ratione temporis. What might be against public policy yesterday may no longer be now and vice-versa. Examples: 1. 2. Slavery in the Roman law was legal Polygamous marriage is valid in Egypt State v. Bell (1872) Each state is sovereign, a government within, of, and for itself, with the inherent and reserved right to declare and maintain its own political recognition of a fact or act contravening it public policy and against good morals, as lawful, because it was made or existed in a state having no prohibition against it or even permitting it. NOTE: For some civil law writers, the repeated use of public policy foils any worthy endeavor of building up an all-around system of private international law since it interferes with each and every conflicts rule. It can provide an easy excuse for the forum to apply its own internal law and thereby defeat the underlying purpose of this subject. When its application would lead to an infringement of good morality in the wider sense of the term, as understood in th forum Q: What is the significance of the qualifying word wider? A: It is used in order to prevent the danger of superior virtue on the part of the forum. Our distinctive concepts of morality may have to give way to the necessity of dispensing justice in individual cases, particularly where the operative facts have arisen abroad, or where the contract with the forum is negligible or where to disturb the situation of the parties by refusal to apply the proper foreign law would result in unfairness.
A: It is based on practicality. If foreign procedural law were to be applied, it would involve a making over of the machinery for the administration of justice in the forum. It is quite impossible for the local court to adopt wholesale the trial machinery of another state. At least in theory, these matters do not affect the actual outcome of the case, since they only relate to the local machinery for the enforcement or protection of the legal relations. When the question involves immovable property in the forum (lex situs) Q: What is the reason behind this rule of lex situs? A: ImmovabilityImmovables are part of the country and so closely connected with it that all the rights over them have their natural center of gravity there. Moreover, every territorial or legal unit has a direct and permanent interest in the allocation of its wealth resources. When the foreign law is fiscal or administrative in nature NOTE: This exception refers in particular to foreign revenue law, such as tax law, local rates and the like. Q: What is the reason for this?
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A: A sovereign has no legal duty to assist foreign governments in the financing of their activities. This is rested on the solid basis of authority and convenience. Where the application of foreign law would involve injustice or injury to the citizens or residents of the forum Where the application of foreign law would endanger the vital interests of the State NOTE: A contract which aims to assist an enemy state, though valid under the proper foreign law, will not be enforced in the forum.
2.
Connecting factor or point of contract (such as the situs of the res, the place of celebration, place of celebration, the place of wrongdoing and the like) Test factors or points in contact
In every set of facts one or more circumstances are present which may serve as the possible test for the determination of the applicable law. Q: Give examples of the most important points of contact. A: 1. Nationality of a person, his domicile, his residence, his place of sojourn or his origin The seat of a legal or juridical person (such as corporation) The situs of a thing (lex situs) which is particularly important when real rights are involved The place where an act has been done (locus actus) which is important in contracts and torts The place where an act is intended to come into effect (e.g., place of performance of contractual duties, place where a power of attorney is to be exercised) The intention of the contracting parties (lex loci intentionis) The place where judicial or administrative proceedings are instituted or done (lex fori or law of the forum) The flag of a ship The problem of characterization NOTE: Every rule of law is based on situations of fact, either actual or imagined, since the legislator must deal with factual situations that are expected to arise in the future, on the basis of past observation and experience. It is important for a judge to characterize his legal problem in order to get the proper solution. Q: What is the problem in characterization? A: Differences in concepts of various legal systems raise the problem of whose concepts should be applied in deciding a conflicts problem. Ideally, every legal system should ascribe the same judicial nature to each institution and rule, but this is impossible, the most that we can expect is agreement upon the legal system which should supply the test of classification. Q: What is classification, characterization or qualification? A: It is the process of assigning a disputed question to its correct legal category. Stages of classification FIRST STAGE: Problem of classification A conflicts situation or legal relation may be classified or characterized by the lex fori in a way that may be different from the characterization of the lex causae or the law of the state with which the transaction or act is closely connected. The question is what law will determine the place of contracting or execution of the contract:
CHAPTER VIII NATURE OF CONFLICTS RULES AND THE PROBLEM OF CHARACTERIZATION NOTE: Private international law is a part of the national law of evert state. Rules of Public intenational law or Law of nations Rules of municipal or national law Usually referred to in modern treatises as international law
2. 3. 4. 5.
6. 7.
Composed of: 1. Domestic or internal rules, applicable to purely internal or domestic cases 2. Rules of private international law or conflicts of law applicable to cases containing or involving some foreign element
8.
Examples of conflict rules: 1. 2. Article 16 (1) Article 17 (1)
Parts of a conflicts rule Q: What are the 2 essential parts of a conflicts rule? A: 1. 2. Real property as well as personal property Is subject to the law of the country where it is situated.
NOTE: The legal consequences of the operative facts stated in the first part of the rule are determined in the second part. This second part prescribes the municipal law to which the question should be referred or connected. An essential element of conflicts rules is the indication of a test or connecting factor or point of contact. Thus, conflicts or choice-of-law rules, therefore, consist of: 1. Factual relationship (such as property right, contract claim)
SECOND STAGE: Characterization of the point of contact or the
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connecting factor a. b. Foreign law chosen under the conflicts rule Lex fori
i. ii. iii. iv. v.
GR: The majority view seems to be that the connecting factor should generally be determined by the law of the forum. XPNs: The question whether tangible property is movable or immovable should not be governed by the lex fori but by the law of the situs 2. If the forum is only a place of trial, and does not have a significant connection with the occurrence or the parties, a common characterization placed upon it by the law of all foreign states or countries involved should be accepted. THIRD STAGE The court should apply the selected Relates to the extent of the proper law to the factual situation application or the delimination of the law that is chosen as applicable to the conflicts case Characterization of a rule of lawprocedural and substantive NOTE: Foreign procedural law will not be applied in the forum. On procedural matters, the lex fori will apply its own procedural law and only substantive law of the appropriate foreign legal system will be applied in the forum. 1.
All questions regarding the beginning and end of personalty; Capacity to have rights in general; Capacity to engage in legal transactions; Matters involving persons and family relations; Testate and intestate succession
Q: What is the criterion concerned? What are the tests? A: The question is what connection should exist between an individual and a particular state in order to subject such indiivdual to the personal law of the state? There are 2 different tests: 1. The necessary connection is deemed to exist between an individual and a particular state if he is one of its nationals 2. Whether the individual is domiciled in the particular state. Q: What are the reasons for the application of the system of personal law? A: Today, the theory of personal law is justified on: 1. 2. practical considerations, and expediency.
Q: Why convenience? A: It is based on the interest of the individual concerned. It is said that the legal position of a person must be the same everywhere, for it would be unjust and difficult to have it determined in different situations. The unity and identity of a person should be respected and guaranteed by the consistent aplication of one and the same law in all countries and in all situations. Q: Why expediency? A: Each state is said to have profound interest in the status and the family relations of its subjects or residents. In order to protect their interests more effectively, sole jurisdiction over questions of status is often claimed by the state of the personal law. Thus: PRINCIPLE OF NATIONALITY PRINCIPLE OF DOMICILE Definition Attempts to extend its own Imposes its own laws upon system of social regulation to its foreigners living within its nationals living abroad borders If a person leaves his country Looks upon the status of the without cutting off his national person, his capacities and his tie through nationalization in the personal rights as principally country to which he migrates, he linked with his home and his should remain subject to all the family, this being the center of laws of his State and should not his life by private act of emigration, be enabled to alter his status and capacity An individualistic and liberal system because it permits a person to effectuate a change of law governing his personal status by his own private act (by changing his domicile) Countries adhering
CHAPTER IX THE SYSTEM OF PERSONAL LAW Nature of Personal law a. Distinction between laws that concern property-- statuta real and those that concern persons, their legal condition and civil statusthe statuta personal; Universal recognition of a system of personal law- Legal position that the legal position of an individual should normally be determined by the law of the State with which he is deemed to be connected in a permanent way, rather than by the divergent laws of the States in which he may happen to be physically present, act or to engage in transaction: i. That a person is attributed certain legal characteristics of a comparatively permanent character; ii. These permamnet characteristics ought to be determined by one law for all purposes rather than from case to case by different laws. There is disagreement on what matters should be regulated by the personal law;
b.
c.
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Philippines, France, Italy, Spain
England, United States Basis Based on the idea that an The desire to obviate individual is more deeply rooted intervention by the State with in his nation than in his home the personal affairs of such of its members as have left its territory and settled abroad Disadvantages 1. Does not solve the 1. It is much more difficult to problems posed by the case determine with certainty of stateless persons and the domicile of a person persons with multiple than his nationality, since nationalities domicile depends largely on his intention, animus, which may be hard to prove in some cases while change of nationality can nearly always be verified by official documents. 2. The notion of domicile does not only differ widely in the different states of the world, but even within one state 3. There is always danger of a pretended change of domicile in order to avoid subjection of certain acts to the rule imposed by the real domicile. Sempio-Dy, 2004 Q: What is a persons personal law? A: It is that which attaches to him whereever he may go; the law that governs his status, capacity, condition, family relations, and the consequences of his actuations. It may be his national law, law of his domicile, or the law of the situs of the event or transaction wherein he was involved, depending on the theory applied and enforced in the forum. Q: Distinguish between status and capacity. A: STATUS It is 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 is concerned; It includes civil status of a person: i. Single, married, widowed, or divorced; Paternity and CAPACITY Refers to the only part of ones status and may be defines as the sum total of his rights and obligations; There are 2 kinds of capactiy: i. Juridical capacity (passive capacity)the fitness to be the subject of legal relations; and ii. Capacity to act (active capacity)- power to do acts with legal
iii. iv.
v.
vi.
filiation; Adopted; Minor or has reached the age of majority; Whether he has capacity to enter into various transactions; Includes name, sex, and his profession in certain cases.
effects. NOTE: A baby has juridical capacuty but has no capacity to act.
Q: What are the characteristics of status? A: 1. 2. 3. It is conferred by statute, not by the individual; It is a matter of public or social interest; Being a concept of social order, it cannot easily be terminated at the mere will or desire of the parties concerned; It is generally supposed to have a universal character. When a certain status is created by the law of one country, it is generally recognized all over the world.
4.
Q: What are the different theories on how the personal law of an individual is determined? A: Nationality theory/personal theory By virtue of which the status and capacity of a person is to be determined by the law of his nationality or his national law. We follow this theory. By virtue of which the status and capacity of a person is to be determined by the law of his domicle The US and other common-law country follow this theory. Views the particualr place or situs of an event or transaction as generally the controlling law.
Domicillary theory/territorial theory
Situs or eclectic theory
Q: Is national law the same as law of citizenship? Distinguish between citizenship and nationality. A: NATIONALITY It refers to the membership in a political community; Personal; More or less permanent, not temporary. CITIZENSHIP A citizen is one who owes allegiance to, and is entitled to the protection of the State.
a.
a.
b.
a.
b.
b. c.
ii.
NOTE: Nationality and citizenship are the same. When our law refers to the ones national law therefore, the law means the persons law of citizenship. Thus, the national law of Filipinos is Philippine law.
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While the national law of an alien is the law of the law of his citizenship. However, once a filipino citizen is naturalized in another country, his national law already becones the law of his citizenship; the former Filipino citizen, once naturalized as an American, now is an American and his national law is now an American law. Q: What are the reasons why some countries adopt the nationality theory, while others adopt the domicillary theory? A: a. Civil law countries follow nationality theory: Practical considerations of convenience and expediency; ii. People in these countries are bound by a spirit of unity, common history and mores; iii. Their identity is guaranteed by the consistent application of their national laws on status and family relations wherever they may go and even when they migrate to other countries. Domicillary theory assumes that the attributes which make up ones status and personal relations are intimately connected with the country where they have made their home. i. Adopted bt US and other common law countries whose population consists of people of differner nationalities with varying tradition and ideals, and whose unity may be considered achieved by adopting the law of their domicile law that governs their status and family relations; Mixed population; Migration; To attain a certain fusion of their population and to avoid the necessity of applying different law to practically every case. i.
Not all nationals are citizens
All citizens are nationals Importance
Q: What is the importance of nationality for a civil law country like the Philippines? A: Tha national law of an individual regulates his: a. civil status and condition, b. his family rights and duties c. intrinsic validity of the will d. rights of succession to his properties Under Public International law In Public International law, it is the bond of nationality that qualifies and enables a state to extend its diplomatic protection to those of its citizens who are in other states, and to demand reparations for injuries that may be suffered by them for failure of said states to conform to the so-called minimum international standard of justice. NOTE: The General Assembly of the U.N. in 1948 adopted the Universal Declaration of Human Rights: a. b. Every person has the right to a nationality, and No one shall be arbitrarily deprived of his nationality nor denied the right to change its nationality Determination of nationality Q: What are the 2 rules provided under the Hague Convention in 1930 on Conflict of Nationality Laws? A: 1. It is for the municipal law of each state (not for international law) to determine who are the nationals of a particular state, subject to certain limitations. Any question as to whether a person possesses the nationality of a particular state shall be determined in accordance with the law of that State.
b.
ii. iii. iv.
2. CHAPTER X NATIONALITY Q: What is nationality? A: It refers to membership in a political community, one that is, personal and more or less permanent, not temporary. Q: Who is a national or a citizen? A: One who owes allegiance to and is entitled to protection from the State. Q: Under Philippine political law, distinguish national from citizen.
Q: What are the limitations on the authority of the state to define who are its nationals? A: 1. 2. 3. It must be consistent with international treaties, International customs, and Principles of law generally recognized with regard to nationality Acquisition and loss of nationality Q: What are the 5 possible modes of acquiring nationality?
A: A: CITIZENS Limited to those who are endowed with political and civil rights in the body politic of a state NATIONAL Includes citizens as well as the persons who, not being citizens, owe permanent allegiance to the State and are entitled to its protection. 1. 2. 3. 4. 5. Birth Nationalization Repatriation Subjugation Cession
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Birth Q: What are the different principles followed by different states? A: 1. 2. 3. Principle of jus sanguinis (by blood) Principle of jus soli (by place) Combination of both Nationalization Q: What is nationlization? A: It is the grant of citizenship: a. upon application or b. by some act which would qualify an individual for a new nationality Repatriation Q: What is repatriation? A: It is the recovery of the original nationality upon fulfillment of certain conditions. Subjugation and cession Subjugation and cession are political changes that result in the establishment of new relations between the inhabitants of a territory and the new sovereign. Subjugation and cession have become obsolete today. Q: What are the modes of losing nationality?
Q: When does dual or multiple nationality arise? A: It arises from the current application of jus soli and jus sanguinis at birth or from a refusal of certain States to accept a full application of the doctrine of expatriation. Likewise, it may result from marriage, or it may be produced by a formal or voluntary act. Q: What is the right/doctrine of expatriation? A: It is the right of abandoning ones nationality and embracing another. NOTE: Where a person is simultaneously a national of the state of the forum and some other state, in matters he is usually conisdered by the forum as exclusively its own national, his additional nationality being disregarded. In case however where a person is a national of 2 or more states but the litigation arises in a third coutry, the law most consistently applied is that of the country of which the person is not only a national but where he also has his domicile or habitual residence, or in the absence of such, his residence. Q: Is dual nationality the same with dual allegiance? A: DUAL NATIONALITY This cannot be avoided due to diverse laws of various states DUAL ALLEGIANCE Art. IV, Sec. 5 of the 1987 Constitution: Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law. Stateless persons
A: Q: Give instances when a person may be considered as stateless. 1. 2. 3. 4. 5. 6. Release Deprivation Expiration Renunciaiton In Germany: allows their citizens to ask for release from their nationality In the Philippines: deprive their citizens of nationality upon entry into the military service of a foreign power A: a. It may arise in international circumstances as where a child of parents whose home country adheres to the principle of jus soli is born in a country in which the principle of jus sanguinis is in force. Neither country can claim him to be his national. Also, tumultuous political events have rendered stateless numerous individuals. For example, thousands of emigrants have lost their nationality by Soviet decree.
Q: What is expiration? A: It is the result of a long stay abroad without any indication of a desire to return. Q: What is renunciation? A: It is when a person repudiates his nationality in favor of another. Q: What is substitution? A: It is the loss of natioality ipso facto by: a. naturalization abroad or b. by marriage Dual or Multiple Nationality
b.
Q: What law will govern the matters of civil status and capacity of stateless persons following the nationality theory? A: Since they have no definite nationality, they are generally subject to the law of their domicile or habitual residence, and in default thereof, to the law of their temporary residence. This rule has been adopted by the Hague Conference on International Private Law in 1928. States with a Composite System of law Q: What are the 2 kinds of composite law?
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A: 1. 2. The composite law on personal basis The composite law on territorial basis
COMPOSITE LAW ON PERSONAL BASIS Determined by religion, class or race
COMPOSITE LAW ON TERRITORIAL BASIS The territory is divided into parts with different body of rules on personal status Example India- the law is different for United States, British empire, Buddhists, Hindus, Poland, Mexico Mohameddans, and whites NOTE: A composite law on a territorial basis makes nationality an incomplete criterion. If the status or civil capaciy of an American is to be determined, it is obvious that it would be a futile quest to find out what is the American law on his status, since there is no such national law; what may be found are different state rules, corresponding to the 50 states of the Union. Q: What are the 3 factors which will affect the determinaiton of the law governing the status of a person whose national law is composite and based on territorial principle. A: If the country to whose law reference is made has a unified internal regulation declaring which one of the several private laws applies to the individual concerned, this regulation is universally accepted for the purpose of secondary reference The rule is quite generally recognized that the law of the domicile constitutes his personal law. Here, the law of nationality is supplemented by the principle of domicile.
Where interregional rules exist Where no interregional rules exist AND The individual is domiciled within his own country Where no interregional rules exist AND The individual is domiciled outside his own country
Supreme Courts flip-floopping v. It was not enough that the alien wife did not have any of the disqualifications; she should have all the qualifications required by the naturalization law to become a Filipino citizen by naturalization: a. Age b. Morality qualification c. Reside in the Philippines for 10 years d. Own estate in the Philippines or have some lucrative trade, profession, or occupation e. Able to speak or write English or Spanish and any of the principal Philippine languages Zito Ngo Burca v. Not only must the aloien woman possess all Republic the qualifications and none of the disqualifications, she has to file a petition for naturalization in the CFI of the place where she had resided at least 1 year before the filing of the petition Mo Ya Yim Yao v. An alien woman marrying a Filipino, nativeCommissioner of born or naturalized, becomes ipso facto a Immigration Filipino provided she is not disqualified to be a citizen of the Philippines under Sec. 4 of the Naturalization law. To prove this, she must prove before some agency of the Government that she is not not disqualified to be a citizen of the Philippines by Naturalization. Lee Suan Ay Galang (1959) A Filipino woman married to an alien Article IV, Sec. 4 of the 1987 Constitution: Citizens of the Philippines who marry aliens shall retain their citizenship unless by their act or omission they are deemed under the laws, to have renounced it. NOTE: Whether she acquires the nationality of her alien husband is determined by the law of the State of which the husband is a national. Citizens or nationals of the Philippines Article V, Section 1 of the 1987 Constitution enumerates: 1. 2. Those who are citizens of the Philippines at the time of the Philippines Thos whose fathers or mothers are citizens of the Philippines Those born before Jan. 17, 1973 of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority; and Those who are naturalized in accordance with law
In this situation, the problem arises. In the Philippines, the case of Babcock Templeton v. Rider Babcock settled the problem by reference to the internal law of the last domicile of the American national in the U.S. But in 1963, in the case of Aznar v. ChristensenGarcia, the court applied the renvoi. Aliens married to Filipinos
3. 2 different and separate treatments: 1. 2. An alien woman married to a Filipino national A Filipino woman married to an alien An alien woman married to a Filipino national Under Sec. 15 of the Naturalization Law (Commonwealth Act No. 473, as amended): Any woman married to a citizen of the Philippines and who might herself be lawfully naturalized, is deemed a citizen of the Philippines. 4.
NOTE: The 1987 Constitution and 1973 Constitution follows the principle of jus sanguiniscitizenship by blood. Article III, Section 1 of the 1973 Constitution Those who are citizens of the Philippines at the time of the adoption of this Constitution Those whose fathers and mothers are citizens of the
1. 2.
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3. 4. 1. 2.
3.
4.
Philippines Those who elect Philippine citizenship pursuant to the provisions of the Constitution of 1935 Those who are naturalized in accordance with law Article IV, Section 1 of the 1935 Constitution Those who are citizens of the Philippines at the time of the adoption of this Constitution Those who are citizens in the Philippine Islands of foreign parents who before adoption of this Constitution, had been elected to public office in the Philippine Islands Those whose mothers are citizens of the Philippines, and upon reaching the age of majority, elect Philippine citizenship Thise who are naturalized in accordance with law
NOTE: There is no doubt that this rule applies in the case of a father who is a natural-born of the Philippines. In the case of a minor child born outside the Philippines, a distinction must be made. MINOR CHILD BORN BEFORE THE NATURALIZATION AND IS DWELLING IN THE PHILIPPINES AT THE TIME OF PARENTS NATURALIZATION He is a Filipino MINOR CHILD BORN BEFORE THE NATURALIZATION AND IS RESIDING OUTSIDE THE PHILIPPINES AT THE TIME OF PARENTS NATURALIZATION a. He is a Filipino only during his minority unless he resides permanently here when still a minor, in which case he will continue to be a Filipino citizen even after he becomes of age. b. A child born after the naturalization shall be considered a Filipino citizen, unless one year after reaching the age of minority he fails to register himself as a Filipino citizen at the Philippine consulate of the country where he resides and take the necessary oath of allegiance
Those who may be considered citizens of the Philippine Islands on May 14, 1935 1. Persons born in the Philippine Islands who resided therein on April 11, 1899 and were Spanish subjects on that date, unless they had lost their Philippine citizenship on or before May 14, 1935 Natives of the Spanish Peninsula who resided in the Philippines on April 11, 1899 and who did not declare their intention of preserving their Spanish nationality between that date and October 11, 1900 unless they had lost their Philippine citizenship on or before May 14, 1935 Naturalized citizens of Spain who resided in the Philippines on April 11, 1899 and who did not declare their intention of preserving their Spanish nationality within the prescribed period, unless they had lost their Philippine citizenship on or before May 14, 1935 Children born of 1,2, and 3 subsequent to April 11, 1899 unless they had lost their Philippine citizenship on or before May 14, 1935 Persons who became naturalized of the Philippines in accordance with the Naturalization law since its enactment on March 26, 1920, unless they had lost their Philippine citizenship on or before May 14, 1935 Children of persons embraced in 5, unless they had lost their Philippine citizenship on or before May 14, 1935: a. Children under 21 years of age on the date of naturalization of said persons, provided that they were dwelling at the time in the Philippines b. Children born in the Philippines subsequent to the naturalization of said persons Foreign women married before May 14, 1935 to citizens of the Philippines who might themselves be lawfully naturalized in the Philippines, unless they had lost their Philippine citizenship on or before May 14, 1935 Those who had been declared as Filipino citizens or upon whom such citizenship had been conferred by the courts due to the principle of res judicata
2.
3.
Those whose mothers are citizens of the Philippines and, upon reaching the age of majority elect Philippine citizenship Under the 1935 Constitution, those whose mothers were citizens of the Philippines, did not become Filipino citizens by birth, but they could become Filipino citizens, if upon reaching the age of majority, elect Philippine citizenship. Q: Under 1935 Constitution, as of what moment must the mother be a citizen of the Philippines? A: 3 possible situations are contemplated: 1. 2. 3. Her Filipino citizenship at the time of the birth of the child Her Filipino citizenship at the time the child elects Philippine citizenship Her Filipino citizenship at the time of her marriage to a foreigner.
4.
5.
6.
7.
8.
Q: Discuss the ruling of the SC in the landmark case of Villahermosa v. Commissioner of Immigration. A: The mother should be a Filipino at the time of such election. Those whose fathers or mothers are citizens of the Philippine (1973, 1987) Constitutions The 1987 adopts the progressive expansion of the jus sanguinis principle. But to benefit from this progressive provision, the mother must be a Filipino citizen at the time of the birth of the child. Those who are naturalized in accordance with law Q: What is naturalization?
Those born in the Philippines of foreign parents, who, before the adoption of the 1935 Constitution, had been elected to public office in the Philippines Those whose fathers are citizens of the Philippines The provision stresses the principle of jus sanguinis. Irrespective of the nationality of the mother, the child of a Filipino father is himself a Filipino.
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6. A: It is the process of clothing an alien with the rights that belong to a natural born citizen. It is considered not a matter of right but one of privilege and may be enjoyed only under the precise conditions prescribed by law. Qualifications for naturalization Q: What are the qualifications for naturalization? A: 1. 2. The petitioner must no be less than 21 years of age on the date of the hearing of the petition He must have resided in the Philippines for a continuous period of not less than 10 years. The 10 year residence requirement may be reduced to 5 years in certain cases He must be of good moral character He must own a real estate in the Philippines worth not less than P5,000, Philippine currency, or must have some lucrative trade, profession or lawful occupation He must be able to speak and write English or Spanish and any one of the principal Philippine languages He must have enrolled his minor children of school age in any of the public oe private schools recognized by the Bureau of Private Schools
7. 8.
Persons who during the period of their residence in the Philippines have not mingled soclially with the Filipinos or who have not evinced a sincere desire to learn and embrace the customs, traditions, and ideals of the Filipinos Citizens or subjects of nations with whom the Philippines is at war Citizens or subjects of a foreign country (other than U.S.) whose laws do not grant Filipinos the right to become naturalized citizens or subjects thereof
Q: Will receipts for contributions to charitable organizations suffice to prove such an intent desire to mingle socially with Filipinos? A: No. Steps for the naturalization proceedings Q: Enumerate the steps for the naturalization proceedings. A: 1. 2. 3. 4. A declaration of intention to become a Filipino citizen, unless the applicant is exempted from this requirement The petition for naturalization must be filed The court will schedule the hearing of the petition If the petition os approved, there will be a rehearing 2 years after the promulgation of the judgment awarding naturalization Taking of the oath of allegiance to suport and defend the Constitution and the law of the Philippines
3. 4.
5. 6.
Q: What kind of residence is required? 5. A: The residence contemplated is not mere legal residence but actual and substantial residence in order to enable the Government and the community to observe the conduct of the applicant and to ensure his having imbibed the principles and the spirit of our institutions. Q: Why is there ownership of real estate requirement? A: To forestall the applicants becoming an object of charity. A citizen must be an asset to his country, not a liability. N Q: Should all the children be enrolled?
NOTE: A uniqie feature of the procedure is the 2-year probationary period. The decision will not be executory until after 2 years from its promulgation. Certain conditions must first be fulfilled and proper proof for that purpose presented. Q: Is a judgment in naturalization case subject to the rule of res judicata? A: No. A judgment in a naturalization case is never final. Letter of Instruction 491
A: Yes. All the children concerned should be enrolled. Failure to enroll even one of them will result in the denial of the petition even if he happens to be out of the Philippines and could not be brought to the Philippines because of insufficient finances, or because of the outbreak of the civil war in China. Disqualifications Q: What are the disqualifications? A: 1. Persons opposed to organized government or affiliated with any association or group of persons who uplhold and teach doctrines opposing all organized governments Persons defending or teaching the propriety of violence, personal assault, or assassination for the success and predominance of their ideas Polygamists or believers in the practice of polygamy Persons convicted of a crime involving moral turpitude Persons suffering from mental alienaiton or incurrable contagious diseases
1. 2.
3. 4.
2.
Applicant must not be less than 18 years of age on the date of the filing of the petition The requirement of income must be waived with respect to: a. Bona fide students b. At least 18 years of age c. Who can become useful citizens fo the country Applicant must be able to speak and write Filipino or any of the principal Philippine dialects Where the applicant was born of a Filipino mother before the effectivity of the 1973 Constitution and has resided continuously in the Philippines since birth, he shall be qualified without any need of any further qualifications, provided he is at least 18 and does not suffer from any of the disqualifications. Loss and reacquisition of Philippine citizenship
3. 4. 5.
Q: How may a Filipino lose his citizenship? A:
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Q: Distinguish between jus soli and jus sanguinis? 1. 2. 3. Naturalization in foreign countries Express renunciation of citizenship Subscribing to an oath of allegiance to support the constitution or laws of a foreign country upon attaining the age of 21 or more Rendering service to or accepting commission in the armed forces or a foreign country Cancellation of certificate of naturalization Having been declared by competent authority a deserter of the Philippine armed forces in time of war XPN: Plenary pardon or amnesty has been granted A woman who marries an alien, if by her act or omission, she is deemed under the law to have renounced her Philippine citizenship A: Jus soli A person is a citizen of the country where he was born, or of the counrty of his birth. This is followed by the US. Q: Who determines whether a person is a Filipino citizen or not? A: Each counrty or state has the sole power and authority to determine under its internal or municipal law who are its citizens or nationals. It shall be determiend in accordance with the law of thatv state (Article 2 of the Hague Convention on Conflict of Nationality Laws). Q: May the problem of the dual or multiple citizenship of a Filipino arise in the Philippines? A: No, because as long as he is a Filipino citizen, our country is not concerned if he has any other citizenship. From the point of view of our Constitution and law, he is only a Filipino citizen. Q: Does Sec. 5, Article IV prohibit Filipinos from having dual citizenship? A: No, dual citizenship cannot be avoided due to the diverse laws of different countries of the world as to who are their citizens and who are not. But the concern of the said provision is not with dual citizenship per se but with naturalized citizens of the Philippines who still maintain their allegiance to the countries of their origin. Thus, for candidates for public office with dual citizenship, suffice it that upon the filing of the COCs, they elect Philippine citizenshio to terminate their status as persons with dual citizenship, considering that their condition is the unavoidabke consequnece of conflicting laws of different states (Mercado v. Manzano). Q: When would the problem of dual citizenship of a filipino arise? A: 1. 2. Natural-born citizens Naturalized citizens A: Only from the point of view of a third state. For example, if Bebeng whose parents are Filipinos but was born and has lived all her life in California, USA, is applying for scholarhip in a French University, the French authorities will regard her not as a Filipino but as an American as her California citizenship is the more effective connecting factor in determining what is her citizenship. This the theory of effect8ive nationality. Accordingly, within a third state, a person, having more than one nationailty shall be treated as if he had only one. Without prejudice to the application of its law in personal matters and of any conventions in force, a third state shall apply the nationalites which any such person possesses, recognize exclusively in its territory either the nationality of the country in which he is habitually and principally a resident, or the nationality of the country with which in the circusmtances he appears to be in fact mostly connected. This may arise in any of the following cases: A: They are those who were formerly aliens but by judicial, legislative, or administrative process, have become Filipino citizens. Jus sanguinis It is citizenship by blood-those whose fathers or mothers or both parents are Filipino citizens is a Filipino citizen.
4. 5. 6.
7.
Q: How may Filipino citizenship be reacquired? A: 1. 2. By naturalization provided that the applicant possesses none of the disqualifications Act of Congress Sempio-Dy, 2004 Q: What are the weaknesses of the nationality theory? A: 1. 2. Offers no solution to problem of stateless person or one with dual or multiple citizenship; Unfair to consider a person still bound by his national law if he has lived in another country for most of his life and practically all ties are with that country; Difficult to change national lawsnaturalization; Difficulty to solve problems relating to individuals in countries where most people have different national laws or legal systems.
3. 4.
Q: What are the kinds of citizens in the Philippines?
Q: Who are Natural-born citizens? A: They are those who are citizens from birth without having to perform any act to acquire or perfect their Philippine citizenship. Q: Who are citizens by election? A: Those born before the 1973 constitution of Filipino mothers but of alien father who, upon reaching the age of 21 or within a reasonable time thereafter, elected Philippine citizenship. NOTE: They are now classified as natural-born citizens. Q: Who are citizens by naturalization?
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1.
2.
In case where a Filipino was born in American soil, he is a Filipino under the rule of jus sanguinis while he is an American under the rule of jus soli; If a filipino woman marries a foreigner whose national law allows her to become a citizen of her husbands country like China by such marriage, she still retains her Philippine citizenship under Art. 6, Sec. 4, unless by her act or omission, she is deemed to have renounced her Philippine citizenship. Thus, she would be both a Filipino and a Chinese citizen, if she does nothing to renounce her Philippine citizenhip.
1. 2.
3. 4.
5.
Those who are citizens of the Philippines at the time of the adoption of the Constitution of the Philippines; Those born in the Philippine Islands of foreign parents who, before the adoption of this Constitution, had been elected to public office in the Philippine Islands; Those whose fathers are citizens of the Philippines; Those whose mothers are citizens of the Philippines and upon reachinh the age of majority, elect Philippine citizenship; Those who are naturalized in accordance with law.
Q: Give exmaple of a problem involving an alien who has dual citizenship. A: A woman who is a Japanese citizen by blood but a Chinese citizen by marriage, dies leaving some properties in our country where she did some business before her death. Since Art. 16, par.2 requires us to apply her national law in determining who are her heirs and how much is the share of each, we should knbow which law should be applied. In such case, we should apply the effective nationality theory. If the deceased woman was a domicilary of Japan at the time of her death, then the Philippine court should apply Japanese law. Otherwise, apply Chinese law. This is because the law of the counrty of which the deceased was both a citizen and a domicilary at the time of her death is considered more effectively connected to her than her other national law. Stated otherwise, she was more closely connected to the country where, being a citizen thereof, she and her family also made it their home. Such country where she and her family had their home was closer to her heart than her other national law. But if the deceased woman was residing at the time of her death in Singapore, the solution would be different because we can no longer say that she was more closely connected to Japan or China, the countries of which she was a citizen at the time of his death. In this case, the domicillary theory comes into play. Apply first the nationality theory by taking her 2 national laws and applying them together insofar as they are consistent and harmonious with each other. But if they are inconsistent and in conflict with each other, then apply the law of Singapore which was her domicile and home at the time of her death. Q: Who are citizens of the Philippines under 1987 Constitution? A: Art. IV, Sec. 1. Q: Who are citizens of the Philippines under the 1973 Constitution? A: 1. 2. 3. 4. Those who are citizens of the Philippines at the time of adoption of 1973 constitution; Those whose fathers or mothers are citizens of the Philippines; Those who elect Philippine citizenship pursuant to the provisions of the Constitution of 1935; Those who are naturalized in accordance with law.
Q: Differentiate the citizenship of children born of Filipino mothers and alien fathers under the 1935 Constitution, from those born of of Filipino mothers and alien fathers under the 1937 Constitution. A:While 1935 Constitution considers as Filipino citizens at birth or as natural-born citizens only those whose fathers were Filipinos at the time of their birth, while those born of Filipno mothers and alien fathers still had to elect Philippine citizenship upon reaching majority before they could be Filipino citizens, this injustice to children born of Filipino mothers was later corrected by the 1973 and 1987 Constitutions which already consider as natural-born citizens those born of Filipino mothers, even if the fathers were aliens. There is no more need of electing Philippine citizenship. NOTE: The mother should be a Filipino at the time of the mothers marriage to an alien. Q: Where do you find the law providing for election of Philippine citizenship under the 1935 Constitution? A: Commonwealth Act. No. 625. Q: Who were Filipino citizens at the time of the adoption of the 1935 Constitution on May 14, 1935? A: 1. Those born in the Philippines who resided therein on April 11, 1899 (the date of the ratification of the Treaty of Paris between the US and Spain) and were Spanish subjects on the date, unless they had lost their Philippine citizenship on May 14, 1935; Natives of the Spanish Peninsula who resided in the Philippines on April 11, 1899, and who did not declare their intention of preserving their Spanish nationality betweeb that date and October 11, 1900 (the time provided for doing so), unless they had lost their citizenship by May 14,1935; Naturalized citizens of Spain who resided in the Philippines on April 11, 1899 and who did not declare thei intention of preserving their Spanish nationality between that date and October 11, 1900, unless they had lost their citizenship by May 14, 1935; Children born of (1), (2), and (3) subsequent to April 11,1899, unless they had lost their citezenship by May 14, 1935; Persons who became naturalized zitizens of the Philippines in accordance with the procedure set forth in the Naturalization Law since ite enactment on March 22,1920, unless they had lost their Philippine citizenship on or before May 14,1935;
2.
3.
4.
5.
Those who are citizens of the Philippines at the time of adoption of 1973 constitution (January 17, 1973)
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6.
7. 8.
9.
Filipino women who, after having lost Philippine citizenship by marriage to foreigners, had subsequently become widows and regained Philippine citizenship on or before May 14, 1935; Children of (7) who were still under 21 years of age at the time their mothers regained Philippine citizenhship; Forein women who, beforeMay 14,1935, got married to citizens of the Philippines, who might themselves be lawfully naturalized in the Philippines, unless they had lost their Philippine citizenship on or before May 14, 1935l All other persons born in the Philippines who, on the strengtg of the erroenous application of the jus soli doctrine in the Roa case, were mistakenly declared by courts as Filipino citizens, unless they had lost their citizenhship by May 14, 1935. These are citizens by res judicata.
b.
c.
NOTE: The law on election of citizenship was effective only as long as there were children of Filipino mothers and alien fathers who were allowed to elect Philippine citizenship upon reaching 21 years. Yet, after 1994, there were no longer those who could elect Philippine citizenship, because all of them would hare already reached 21 and they either had already elected or did not elect at all, in which latter case they continued to be aliens following their citizenship of their fathers. Q: Suppose the Filipino mother of a child born under the 1935 Constitution was not legally married to her alien husband, what is the citezenship of the child? A: The child, being illegitimate, followed the citizenship of the mother without need of election. Hence, the child is a Filipino from birth. Q: What is the citizenship of a Filipino woman who marries a foreigner? A: Prior to the 1973 Constitution If she acquired the nationality of her alien husband, she lost her Philippine citizenship. Otherwise, she remained a Filipino. E.g. Chinese Under the 1973 Constitution A female citizen of the Philippines who marries an alien shall retain her Philippine citizenship, unless by her act or omission, she is deemed, under the law, to have renounced her Philippine citizenship. Under the 1987 Constitution Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission, they are deemed, under the law, to have renounced their Philippine citizenship.
proceeding in a court of justice, and that any such declaration by any other officer or agency is null and void; Moya Ya Lim Yao v. Comm.of Immigration- SC reversed the Burca doctrine and held that an alien woman marrying a Filipino, native-born or naturalized, becomes ipso facto a Filipino provided she is not disqualified to be a citizen of the Philippines under Sec. 4 of Commonwealth Act.No. 473; Djumanton v. Domingo- SC held that there is no law guarantying aliens narried to Filipinos the right t be admitted into, much less given permanent residence in the Philippines. Entry of aliens into the Philippines and their admission as immigrants is not a matter of right, even if they are legally married to Filipinos. Marriage of an alien woman to a Filipino husband does not ipso facto make her a Filipino citizenship and does not excuse her from her failure to depart from the Philippines upon the expiration of her extended stay here as an alien.
Q: What is naturalization? A: It is the process of conferring on an alien the citizenship of another country, by any of the means provided by law. it is considered not a matter of right but one of privilege and may be enjoyed only under the precise conditions prescribed by law. Q: What are the different modes of acquiring Philippine citizenship by naturalization? A: 1. 2. 3. By judicial process- (CA No. 475); By legislative process-where citizenship is conferred by a special act of Congress on deserving aliens; By administrative process (RA No, 9139)- where a Special Committee on Naturalization is created, with the power to approve, deny or reject applications for naturalization filed with the said Committee. Members of the Committee are the Solicitor-General as chairman, and the Secretary of Foreign Affairsb of his representatiive and the National Security Adviser as members.
Q: What do you mean by Derivative Naturalization? A: It is citizenship conferred on: 1. 2. 3. Wife of naturalized husband; Minor children of a naturalized father; and Alien wife of a natural-born or naturalized citizen, in the latter case, the marriage having taken place after husbands naturalization.
Q: What are the qualifications for judicial naturalization under Sec. 2, CA No. 473, as amended? A: Section 2. Qualifications. Subject to section four of this Act, any person having the following qualifications may become a citizen of the Philippines by naturalization: First. He must be not less than twenty-one years of age on the day of the hearing of the petition;
Q: What is the citizenship of an alien woman who marries a Filipino husband? A: a. Zita Ngo Burca v. Republic (1967)- proper proceeding wherein an alien woman married to a Filipino can be herself declared a Filipino citizenship is naturalization
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Second. He must have resided in the Philippines for a continuous period of not less than ten years; Third. He must be of good moral character and believes in the principles underlying the Philippine Constitution, and must have conducted himself in a proper and irreproachable manner during the entire period of his residence in the Philippines in his relation with the constituted government as well as with the community in which he is living. Fourth. He must own real estate in the Philippines worth not less than five thousand pesos, Philippine currency, or must have some known lucrative trade, profession, or lawful occupation; Fifth. He must be able to speak and write English or Spanish and any one of the principal Philippine languages; and Sixth. He must have enrolled his minor children of school age, in any of the public schools or private schools recognized by the Office of Private Education1 of the Philippines, where the Philippine history, government and civics are taught or prescribed as part of the school curriculum, during the entire period of the residence in the Philippines required of him prior to the hearing of his petition for naturalization as Philippine citizen. Q: What are the disqualifications for naturalization under CA No. 473, as amended? A: Section 4. Who are disqualified. - The following cannot be naturalized as Philippine citizens: a. Persons opposed to organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing all organized governments; Persons defending or teaching the necessity or propriety of violence, personal assault, or assassination for the success and predominance of their ideas; Polygamists or believers in the practice of polygamy; Persons convicted of crimes involving moral turpitude; Persons suffering from mental alienation or incurable contagious diseases; Persons who, during the period of their residence in the Philippines, have not mingled socially with the Filipinos, or who have not evinced a sincere desire to learn and embrace the customs, traditions, and ideals of the Filipinos; Citizens or subjects of nations with whom the United States 2and the Philippines are at war, during the period of such war; Citizens or subjects of a foreign country other than the United States 3whose laws do not grant Filipinos the right to become naturalized citizens or subjects thereof.
A: Section 3. Qualifications. - Subject to the provisions of the succeeding section, any person desiring to avail of the benefits of this Act must meet the following qualifications: (a) The applicant must be born in the Philippines and residing therein since birth; (b) The applicant must not be less than eighteen (18) years of age, at the time of filing of his/her petition; (c) The applicant must be of good moral character and believes in the underlying principles of the Constitution, and must have conducted himself/herself in a proper and irreproachable manner during his/her entire period of residence in the Philippines in his relation with the duly constituted government as well as with the community in which he/she is living; (d) The applicant must have received his/her primary and secondary education in any public school or private educational institution dully recognized by the Department of Education, Culture and Sports, where Philippine history, government and civics are taught and prescribed as part of the school curriculum and where enrollment is not limited to any race or nationality: Provided, That should he/she have minor children of school age, he/she must have enrolled them in similar schools; (e) The applicant must have a known trade, business, profession or lawful occupation, from which he/she derives income sufficient for his/her support and if he/she is married and/or has dependents, also that of his/her family: Provided, however, That this shall not apply to applicants who are college degree holders but are unable to practice their profession because they are disqualified to do so by reason of their citizenship; (f) The applicant must be able to read, write and speak Filipino or any of the dialects of the Philippines; and (g) The applicant must have mingled with the Filipinos and evinced a sincere desire to learn and embrace the customs, traditions and ideals of the Filipino people. Q: What are the disqualifications for naturalization under RA No. 9139? A:
b.
c. d. e.
f.
Section 4. Disqualifications, - The following are not qualified to be naturalized as Filipino citizens under this Act: (a) Those opposed to organized government or affiliated with any association of group of persons who uphold and teach doctrines opposing all organized governments; (b) Those defending or teaching the necessity of or propriety of violence, personal assault or assassination for the success or predominance of their ideas; (c) Polygamists or believers in the practice of polygamy; (d) Those convicted of crimes involving moral turpitude;
g.
h.
Q: What are the qualifications for administrative naturalization under Sec 3, of RA. No. 9139?
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(e) Those suffering from mental alienation or incurable contagious diseases; (f) Those who, during the period of their residence in the Philippines, have not mingled socially with Filipinos, or who have not evinced a sincere desire to learn and embrace the customs, traditions and ideals of the Filipinos; (g) Citizens or subjects with whom the Philippines is at war, during the period of such war; and (h) Citizens or subjects of a foreign country whose laws do not grant Filipinos the right to be naturalized citizens or subjects thereof. Q: How may Philippine citizenship be lost (CA. No. 63)?
(6) By having been declared by competent authority, a deserter of the Philippine armed forces in time of war, unless subsequently, a plenary pardon or amnesty has been granted; and (7) In the case of a woman, upon her marriage to a foreigner if, by virtue of the laws in force in her husband's country, she acquires his nationality. NOTE: Under the 1973 and 1987 Constitutions, the woman in no. 7 above retains her Philippine citizenship unless by her act or omission, she is deemed under the law to have renounced her Philippine citizenship. Q: How may Philippine citizenship be reacquired under CA 63? A:
A: Section 1. How citizenship may be lost. A Filipino citizen may lose his citizenship in any of the following ways and/or events: (1) By naturalization in a foreign country; (2) By express renunciation of citizenship; (3) By subscribing to an oath of allegiance to support the constitution or laws of a foreign country upon attaining twenty-one years of age or more: Provided, however, That a Filipino may not divest himself of Philippine citizenship in any manner while the Republic of the Philippines is at war with any country; (4) By rendering services to, or accepting commission in, the armed forces of a foreign country: Provided, That the rendering of service to, or the acceptance of such commission in, the armed forces of a foreign country, and the taking of an oath of allegiance incident thereto, with the consent of the Republic of the Philippines, shall not divest a Filipino of his Philippine citizenship if either of the following circumstances is present: (a) The Republic of the Philippines has a defensive and/or offensive pact of alliance with the said foreign country; or (b) The said foreign country maintains armed forces on Philippine territory with the consent of the Republic of the Philippines: Provided, That the Filipino citizen concerned, at the time of rendering said service, or acceptance of said commission, and taking the oath of allegiance incident thereto, states that he does so only in connection with his service to said foreign country: And provided, finally, That any Filipino citizen who is rendering service to, or is commissioned in, the armed forces of a foreign country under any of the circumstances mentioned in paragraph (a) or (b), shall not be permitted to participate nor vote in any election of the Republic of the Philippines during the period of his service to, or commission in, the armed forces of said foreign country. Upon his discharge from the service of the said foreign country, he shall be automatically entitled to the full enjoyment of his civil and political rights as a Filipino citizen; (5) By cancellation of the of the certificates of naturalization; A: (2) By repatriation of deserters of the Army, Navy or Air Corp: Provided, That a woman who lost her citizenship by reason of her marriage to an alien may be repatriated in accordance with the provisions of this Act after the termination of the marital status;4 and (3) By direct act of the National Assembly. Q: What is the procedure incident to the reacquisition of Philippine citizenship? A: Section 3. Procedure incident to reacquisition of Philippine citizenship. The procedure prescribed for naturalization under Act Numbered Twenty-nine hundred and twenty-seven,5 as amended, shall apply to the reacquisition of Philippine citizenship by naturalization provided for in the next preceding section: Provided, That the qualifications and special qualifications prescribed in section three and four of said Act shall not be required: And provided, further, (1) That the applicant be at least twenty-one years of age and shall have resided in the Philippines at least six months before he applies for naturalization; (2) That he shall have conducted himself in a proper and irreproachable manner during the entire period of his residence in the Philippines, in his relations with the constituted government as well as with the community in which he is living; and (3) That he subscribes to an oath declaring his intention to renounce absolutely and perpetually all faith and allegiance to the foreign authority, state or sovereignty of which he was a citizen or subject. Q: How about repatriation? How can it be effected? Section. 2. How citizenship may be reacquired. Citizenship may be reacquired: (1) By naturalization: Provided, That the applicant possess none of the disqualification's prescribed in section two of Act Numbered Twenty-nine hundred and twenty-seven,
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Section 4. Repatriation shall be effected by merely taking the necessary oath of allegiance to the Commonwealth6 of the Philippines and registration in the proper civil registry.
A: 1. Adoption of some Anglo-Saxon rules based on domiciliary principles Example: test in determining validity of a divorce decree obtained abroad 2. Inadequacy of the nationality principle when applied to stateless persons, persons of multiple nationality and persons belonging to countries having a composite system of law The occasional reference by Philippine law to the lex domicilii in determining the validity of certain acts: a. On the formal validity of a will executed by an alien abroad b. On the revocation of a will done outside the Philippines
CHAPTER XI DOMICILE Q: What is domicile? A: It is the place with which a person has a settled connection for certain legal purposes, either because his home is there or because that is the place assigned to him by law. Q: How is domicile acquired? A: Every person acquires at birth a domicile of origin, which may be different from the place where he is born or that in which his parents are residing at the moment, but the country in which his father is domiciled at the time of his birth. Domicile and Residence Q: Distinguish domicile from residence. A: RESIDENCE Used to indicate the place of abode, whether permanent or temporary Residence is not domicile DOMICILE Denotes fixed, permanent residence to which, when absent, one has the intention of returning Domicile is residence coupled with intention to remain for an unlimited time CONSTRUCTIVE DOMICILE The place assigned by law to persons under legal disability, such as: a. Infants (follows the domicile of his parents) b. Minors (follows the domicile of his parents) c. Prisoners (domicile before his imprisonment) and the like
3.
Q: What are the functions of domicile in conflict of laws? A: JUDICIAL JURISDICTION CHOICE OF LAW Whether court has jurisdiction bases on their residence or domicile of one of the parties A will executed by an alien may be considered formally valid if for formally valid by his domicile The state of the domicile may subject a person to certain forms of personal taxes
GOVERNMENTAL BENEFITS AND BURDENS
No uniform concept of domicilevariety of meanings What law detemines domicile
DOMICILE OF CHOICE The place freely chosen by a person with full legal capacity as his home
Q: What law will determine what is domicile? A: A Philippine court will apply its own concept of domicile. Q: How did the league of nations try to eliminate the so-called conflict of the conflict of laws relating to domicile? A: By combining the theory of territoriality with the lex fori principle. The courts of each country determine under its own domestic legislation whether an individual is or is not domiciled therein; where two or more foreign laws conflict in respect of domicile that concept prevailing in the place of actual residence should be preferred. Basic principles of domicile 1. 2. 3. 4. 5. No natural person can ever be without a domicile A person cannot have 2 simultaneous domiciles Every natural person as long as he is free and sui juris may have and change his domicile at pleasure A domicile once acquired is retained unless a new one is gained The presumption in favor of the continuance of an existing domicile. Therefore, the burden of proof is on the one who alleges that a change of domicile has taken place. Legal classification of domicile
Importance of domicile in the Philippines Q: What is the importance of domicile? A: 1. 2. It is an important point of contract in determining the personal law of an individual Bases for the exercise of judicial power
Q: In the Philippines, we follow the nationality principle. Discuss the reasons why domicile is important.
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Q: What are the 3 kinds of domicile? A: 1. 2. 3. Domicile of origin Domicile by operation of law (constructive domicile) Domicile of choice The domicile of a persons parents at the time of his birth a. If the father is dead or if the child is illegitimate, its domicile follows that of the mother b. Legitimated child takes the mothers domicile at the time of birth, but upon legitimation, his constructive domicile becomes that of the father c. A foundling, i.e., deserted child has his domicile of origin in that of his natural parents but upon adoption, takes the domicile of the adopting parents, which becomes the constructive domicile of the child The domicile established by law after birth in the case of persons under legal disability, regardless of their intention or voluntary act The place voluntarily chosen by a person sui juris as his home and to which, whenever he is absent, he has the intention of returning This arises when an existing domicile whether of origin or not, is abandoned and replaced by a new one Q: What are the 4 requisites for a domicile of choice? A:
May be changed from one place to another
There can only be one place of origin for every person Less easiy abandoned and more easily reverts
Minors NOTE: Under the Family Code, both the father and the mother exercise joint authority over the children, except where there is disagreement between them, in which case the fathers authority prevails. a. b. Thus, the domicile of the minor follows that of both parents. Should there be any change in the domicile of parents during the minority, that of the child also changes irrespective of his desire or the desire of his parents XPN: When the child has been duly emancipated If either parents of the minor child died, the child follows the domicile of the surviving parent The remarriage of the surviving parent shall not affect the parental authority over the children, unless the court appoints another person to be the guardian of the person or property of the children In case the parents are separated, the FC says that the parental authority shall be exercised by the parent designated by the court A child born illegitimate takes the domicile of his mother Married women Family Code: The right to decide the question of where the family domicile should be established is now a joint prerogative of the husband and the wife. Otherwise, the court is authorized to decide. GR: The spouses are obliged to live together XPN: The court may exempt one spouse from living with the other. Q: What are the 3 conclusions on domicile of choice? A: 1. To acquire a fresh domicile, residence and intention must concur To retain existing domicile, either residence or intention to remain must be present To abandon domicile, residence in the new place and intention to abandon the old place must concur
DOMICILE OF ORIGIN (Domicilium originis)
c. d.
e.
CONSTRUCTIVE DOMICILE (Domicilium necessarium) Domicile of choice
f.
1. 2. 3. 4.
Capacity Freedom of choice Residence Intention to make that the place of home
2. 3.
NOTE: The last 2 requisites are the 2 elements necessary for the acquisition of a new domicile Q: Distinguish constructive domicile from domicile of origin. A: CONSTRUCTIVE DOMICILE Assigned after birth Assigned to persons under legal disabilities DOMICILE OF ORIGIN Established at the moment of birth Assigned only to infants
NOTE: The fact that physical presence in a place is for an illegal or immoral purpose should have no effect on the acquisition of domicile except as the purpose of the presence may indicate that the required domiciliary intention is not present.
Sempio-Dy, 2004 Q: What is the Domiciliary Theory under Conflicts of Law?
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A: It is the theory whereby the status, condition, rights, obligations, and capacity of a person arte governed by the law of his domicile or the lex domicilli. Q: What is domicile?
A: It is the forum that applies in determining the domicile in determining the domicile of a litigant before its courts. Q: What are the different kind of domicile? A:
A: a. The place where a person has his true, fixed, permanent home and principal estlishment, and to which, whenever he is absent, he has the intention of returning; Place where a person has a settled connection for certain legal purposes, either because his home is there or because that is the place assigned to him by law; For the exercise of civil rights and fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence (Art. 50, NCC). Domicile of origin The domicile assigned by law to a person at the moment of his birth NOTE: This is acquired at birth; therefore, it never changes. Assigned by law. The domicile assigned by law to a person after birth on account of a legal disability, like minority, insanity, imprisonment, etc. NOTE: This is given after birth to those who lack capacity to choose their own domicile, like minors, insanes, etc. May change from time to time like when the parents of a minor change domicile several times. Assigned by law. Domicile of a person sui juris because he has his home there to which, whenever absent, he intends to return. Is the result of the volunatry will and action of a person concerned. Q: State some basic principles regarding ones domicile of choice. A: 1. Citizenship Indicate ties of allegiance and loyalty 2. 3. 4. Q: Why us it still important for us to know and study the domiciliary theory considering that our country follows the nationality theory? A: 1. In some cases, our own law makes the law of the domiciliary of a person the controlling factor in the solution of conflicts cases; e.g. Art. 829-revocation of will Sometimes, our law makes either the law of ones nationality or that of his domicile as the controlling factor; e.g. Art.816 In case of stateless individuals, or those with dual or multiple nationalities, the domiciliary theory runs to the rescue of the nationality theory.\ 5. No person can ever be without a domicile or every natural person person must have a domicile; A person cannot have 2 simultaneou domiciles; A natural person, free and sui juris can change his domicile at pleasure; A domicile once acquired, it is retained untile a new one is gained; The presumption being in favor of the continuance of an existing domicile, the burden of proof is on the one who alleges thata change of domicile has taken place; To acquire a new domicile of choice, the following must concur: a. Residence or bodily presence in the new locality; b. An intention ti remain there (animus manendi); c. An intention not to return to the former abode.
b.
c.
Q: Are domicile and residence the same? A: Domicile Refers to the relatively more permanent abode of a person Denotes a fixed, permanent residence to which, when absent, one has the intention of returning. Residence Temporary stay of a person in a given place Indicate a place of abode, whether permanent or temporary;
Constructive domicile or domicile by operation of law
Domicile of choice
NOTE: Residence is not domicile but domicile is residence coupled with intention to remain for an unlimited time. A man can have one domicile for one and the same purpose at any time, but he may have numerous places of residence. Q: Distinguish between domicile from citizenship. A: Domicile Speaks of ones permanent place of abode
6.
2.
3.
Q: What are the rules in determining ones domicile of origin? A: 1. If the child is legitimate, his domicile of origin is that of his parents at the time of his birth; if the parents are separated, the domicile of the custodial parentl;
Q: What determines ones domicile, his national law or the lex fori?
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If the child is ilegitimate, his domicile of origin is that of the mother at the time of his birth; If the child is legitimated, the domicile of his father at the time of his birth controls, since the effects of legitimation retroacts to the time of the childs birth. The domicile of origin of an adopted child is the domicile of his real parents at the time of his birth, not the domicile of the adopters; The domicile of origin of a foundling is the country where it was found.
a. b. c.
2.
3.
Convict or prisoner- domicile is the one he had possessed prior to his incarceration; Soldiers-domicile is their domicile before their enlistment; Publioc officiails or employees abroad like diplomats, consular officials-their domicile is the one they had before they were assigned elsewhere, unless they voluntarily adopt their place of employment as their permanent residence. ECLECTIC THEORY
Q: Give some rules in determining ones constructive domicile. Q: What is the situs or eclectic theory? A: 1. Minors a. Legitimate-domicile of both parents. In case of disagreement, that of the father, unless there is a judicial order to the contrary; Illegitimate- domicile of the mother; In case of absence or death of either parent, the domicile of the present parent. Even in case of the marriage of the surviving parent, still his/her domicile determines the constructive domicile of the minor child; If the child is adopted, the domicile of choice of the adopter is the childs constructive domicile. A: Under this theory, the capacity, condition, status, or capacity of a person is governed not necessarily by the law of his nationality or the law of his domicile but by the law of the place where an important element of the problem occurs or is situated. a. If the participation is active-when he does the act voluntarily, the governing law is the law of the actula situs of the transaction or event; If the participation is passive as when the effects of the act are set forth or determined by law, the governing law is the law of the legal situs-domicile of an individual concerned.
b. c.
b.
d.
E.g. The marriage between Filipinos in Hongkong: a. Validity of marriage is governed by the actual situslex loci celebrationis; b. With respect to the rights and obligations and property relations of the Filipino people, they are governed by the natioanl law of the spouses (Article 80, FC)
2.
Insane, idiots, imbeciles a. b. c. It is the law which assigns their domicile to them; If they arev below the age of majority, the rules on minors apply to them; If they are of age and have guardians, they follow the domicile of choice of their guardians. If theu have no guardians, their constructive domicile is their domicile of choice before they became insane.
3.
Married women a. Valid marriage: i. Constructive domicile of wife us the domicile of both spouses, unless the law allows the wife to have a separate domicile, for valid and compelling reasons; ii. If there is legal separation between spouses, the wife can have her own domicile of choice; iii. If there is separation de facto, the wife can also have a separate domicile. If the marriage is voidable- applly the same rules as when the marriage is valid. Yet, after annulment, the wife can freely select her own domicile of choice; If the marriage is void-the wife can have a domicile separate from the husband.
b.
c.
4.
Other persons:
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F. MARRIAGE, DIVORCE AND OTHER ENCOUNTERS CHAPTER XVI-Marriage Q: Why do conflicts problems arise in connection with marriage as a contract? A: Because different countries or states, depending on their public policy, culture or code or morality have different laws in determining the validity of marriage as a contract (Sepmpio Diy, 2004). Marriage as a contract and as an Institution
Article 1. Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. (52a)
ARTICLE XV THE FAMILY

Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and actively promote its total development. Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State. Section 3. The State shall defend: The right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood; The right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse, cruelty, exploitation and other conditions prejudicial to their development; The right of the family to a family living wage and income; and The right of families or family associations to participate in the planning and implementation of policies and programs that affect them. Section 4. The family has the duty to care for its elderly members but the State may also do so through just programs of social security.
Q: Distinguish between marriage and an ordinary contract. A: Marriage Marriage is a contract because of the element of mutual consent It is different from ordinary contract as it can only be contracted only by and between persons of opposite sex If one of the parties had previously entered into a similar contract with one who is still living, the marriage is not valid Parties to a marriage contract cannot mutually withdraw from the relationship if and when they please Regulated by law Ordinary contract
Q: What is marriage? A: a.
Not necessary
b.
It is a special contract of permanent union between a man and a woman; Yet, marriage is and should be defined in broader terms than those in which it is understood in internal Philippine law. Marriage problems in conflict of laws
A person may enter into as many ordinary contracts as he can Parties are usually free to do so
Q: What are the policy considerations in marriage? A: 1. 2. 3. Predictability; To sustain marriages entered into in good faith; Marriage is a matter of public concern and all States have rules stating how marriages may be contracted and prohibiting certain marriages: a). incestuous and b). polygamous marriages. Problem of what law governs the creation of marriage relation; Problem of recognition of the marriage and protection to be given the relation and incidents arising from the marriage relation in States other than that in which the relationship was created; Predictability- it is not socially desirable for a couple to be considered married in one State but not in another. This is known as limping marriages. A policy that upholds the validity of marriage relation protects the justified expectations of the contracting partiesupholding the values of certainty and predictability; Yet, the forum, when confronted by a marriage deemed particularly offensive to its own standards, will strike down a marriage validly contracted in other jurisdictions, if it is against its norms of public policy or morality.
Regulated by the terms and conditions stipulated by the parties
Cause of dissolution of marriage contract is different from those of an ordinary civil contract. RATIO: Once contract is perfected, marriage becomes an enduring relationship. Creates a status which once created is treated as a res, a thing which has legal existence independent of the control of the parties to it and which has a situs assigned to it by law. It is a creature of law and may be destroyed only in the manner specified by law. CONSTITUTIONAL PROVISION
a. b.
c.
d.
e.
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Formal validity Q: What law governs formal validity of marriage? A: It is the law of the place where a marriage is celebrated. This is in consequence of the maxim locus regit actumplace governs the act. Thus, if valid by law of the place of celebration, the lex loci celebrationis, it is also valid in other places though by the law of the latter other formalities are required. Q: What do you mean by formal validity or formal requirements of marriage? A: It refers to the external conduct required of the parties or of the solemnizing officers essential to the formation of a legally valid marriage. Q: What are the formal requisites of marriage? A: Art. 3. The formal requisites of marriage are: (1) Authority of the solemnizing officer; (2) A valid marriage license except in the cases provided for in Chapter 2 of this Title; and (3) A marriage ceremony which takes place with the appearance of the contracting parties before the solemnizing officer and their personal declaration that they take each other as husband and wife in the presence of not less than two witnesses of legal age. (53a, 55a) i. ii. iii. iv. Physical examination preceding the marriage; Proper person to solemnize it; Necessity of formal ceremony; and Manner of performance of the ceremony.
When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution. Prohibitive laws concerning persons, their acts or property, and those which have, for their object, public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. (11a) ART. 26, FAMILY CODE 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), 3637 and 38. (17a) 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 capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (As amended by Executive Order 227) RATIO: Where the parties choose a place as the loci celebrationis of their marriage, they are considered to have subjected all questions of forms to the law of that place, and if valid there it should be considered valid everywhere. i. It is necessary to prove the content of the foreign law and the fact of conformity of said marriage to the requirements of the said foreign law; In the absence of proof of the foreign law, the presumption arises that it is the same as Philippine internal law; Courts cannot take judicial notice of foreign laws. They must be alleged and proved as any other fact. Proxy marriages Q: State the rule in case of proxy marriages.
ii.
NOTE: Formal requisites apply only when the marriage is held in the Philippines. Q: What is the function of such formalities? A: 1. 2. 3. To guarantee the finality and seriousness of the solemnized act; Publicize the marriage; Furnish trustworthy evidence of its concurrence.
iii.
A: Proxy marriages where permitted by the law of the place where the proxy participates in the marriage ceremony, are entitled to recognition in countries to the lex loci relebrationis rule in so far as the formal validity is concerned. Common-law marriage
Q: What is the effect of the absence of any of these formal requisites? A: It will render the marriage void ab initio.
Q: What is common-law marriage? Q: What is the effect mere irregularity in the formal requisites? A: It will not affect the validity of marriage but the party or parties responsible for the irregularity shall be held liable. Philippine law on formal validity Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. A: It is a marriage accomplished by cohabitation and agreement without formal ceremony. NOTE: In the case of Eugenio v. Velez, the SC reiterated the rule that common-law marriages are not recognized under Philippine internal law. Marriage on board a vessel on the high seas
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Since the nation whose flag ship is flying has jurisdiction over the ship, the rule is that compliance with this law is required for a marriage to be validly contracted. Consular marriages i. There are states which authorizes their consular or diplomatic agents in foreign countries to solemnize marriages; Art. 10. Marriages between Filipino citizens abroad may be solemnized by a consul-general, consul or vice-consul of the Republic of the Philippines. The issuance of the marriage license and the duties of the local civil registrar and of the solemnizing officer with regard to the celebration of marriage shall be performed by said consular official. (75a) Marriages performed before a consular or diplomatic agent empowered by a sending state to officiate marriage is valid in the receiving state only if the latter has agreed to his acting in that capacity; otherwise, such marriage may be declared invalid in the courts of the place of celebration. Substantive validity Q: What is the effect of absence of such requisite? A: It shall render the marriage void or voidable. Q: What are the 2 essential requisites of marriage? A: Art. 2. No marriage shall be valid, unless these essential requisites are present: (1) Legal capacity of the contracting parties who must be a male and a female; and (2) Consent freely given in the presence of the solemnizing officer. (53a) Q: What law governs the substantive validity of marriage? A:
Art. 21. When either or both of the contracting parties are citizens of a foreign country, it shall be necessary for them before a marriage license can be obtained, to submit a certificate of legal capacity to contract marriage, issued by their respective diplomatic or consular officials. Stateless persons or refugees from other countries shall, in lieu of the certificate of legal capacity herein required, submit an affidavit stating the circumstances showing such capacity to contract marriage. (66a) NOTE: The effect of Art. 21 is to leave it to the government of the alien to decide almost conclusively the question of whether he or she can marry in the Philippines. Philippine law on substantive Validity Marriages celebrated abroad Law of the place of celebration: 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), 3637 and 38. (17a) GR: Valid where celebrated, valid everywhere. XPN: 1. In case of Filipino nationals who marry abroad before Philippine consulate or diplomatic officials; Marriages that are prohibited under Philippine law: bigamous or polygamous marriages; marriages contracted through mistake of one party as to the identity of another. Incestuous marriages Art. 37. Marriages between the following are incestuous and void from the beginning, whether relationship between the parties be legitimate or illegitimate: (1) Between ascendants and descendants of any degree; and (2) Between brothers and sisters, whether of the full or half blood. (81a) Marriages contracted in the Philippines
ii.
iii.
2. 1. lex loc celebrationis- law of the place of the celebration of marriage; and NOTE: It works as an inducement to evade local prohibitions since it makes marriage possible for persons who could not marry under their domiciliary or national laws by merely giving to another State to have their marriage solemnize there. personal law of the contracting partieseither the law of their domicile or nationality)
2.
NOTE: Conflicts relating to marriage may be complicates because more than 1 country may be involved. GR: A marriage should be upheld if valid according to the law of the place of celebration. XPN: Marriage itself or the enjoyment of the incidents of the marital relationship would offend the strongly-held notions of decency and morality of the State that has a close relationship to the contracting parties.
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CHAPTER XV ANNULMENT AND DIVORCE Q: Give the distinctions between marriage and divorce? A: Divorce Decree of divorce dissolves marriage and relieves the spouses from their marital obligations Presupposes that the marriage relation had a lawful existence Annulment The decree does not recognize the existence of the marriage.
Its legal effect is to declare that the marriage never existed
Abroad 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), 3637 and 38. (17a) Lex loci celebrationis determines whether there is any defect in substance which would render the marriage invalid.
Philippines There is no foreign element
Annulment 1. 2. What court has jurisdiction to declare that a marriage is annulled? What law governs the annulment of a marriage?
Where the contracting parties are aliens, or where one is an alien and other is a national, the national law of the alien determines whether he possesses the capacity to marry. Art. 21. When either or both of the contracting parties are citizens of a foreign country, it shall be necessary for them before a marriage license can be obtained, to submit a certificate of legal capacity to contract marriage, issued by their respective diplomatic or consular officials. Stateless persons or refugees from other countries shall, in lieu of the certificate of legal capacity herein required, submit an affidavit stating the circumstances showing such capacity to contract marriage. (66a) NOTE: It is their national law that decides whether the marriage concluded is void, voidable or non-existent. Where the parties have different national laws, each of the 2 laws must consulted in order to determine the consequences of failure to comply with the requirement imposed by each. All other matters of substance not concerned with capacity to marry, aliens marrying in the Philippines are governed by Philippine internal law, the lex loci celebrationis. ARTICLE 36 Psychological Incapacity Art. 36. A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. (As amended by Executive Order 227) Purpose: to harmonize civil law with policy and practice of the Catholic Church: 1. 2. As a substitute for divorce; To give parties to Church-annulled marriages a cause of action to have their marriages declared void by the civil courts; To give a remedy to parties long imprisoned by marriage that exists in name only because of the inability of one of them to perform the essential obligations of marriage.
NOTE: Jurisdiction to annul must always be distinguished from the law that determines the cause or ground for annulment. Jurisdiction to annul GR: It is the law of the domicile of the parties. RATIO: 1. 2. It is the State of the domicile that has the greatest interest in the domestic relations of the contracting parties; Domiciled aliens may bring their matrimonial causes before the local courts instead of compelling them to travel to, and sue in their respective countries. Jurisdiction over the non-resident defendant is not essential.
3.
Where the wife was a national of the firm before marriage, jurisdiction is likewise assumed for 2 reasons: 1. 2. Protection of its own national; and There is no possible change of nationality that if the marriage is declared void, there is no possible change of nationality as a result of the marriage and the court is therefore competent.
Q: What is the law governing annulment or nullity> A: GR: The law that governs formal and substantive validity of contract of marriage also governs the questions as to whether there is a valid cause for annulment. All questions involving formalities are governed by the law of the place where the marriage is performed (Lex loci celebrationis). With respect to intrinsic validity, our conflict of law distinguishes between marriages performed abroad and those performed in the Philippines.
3.
Q: What is psychological incapacity? A: He who suffers from psychological incapacity knows what marriage is all about, including the rights and obligations of spouses. Hence, he is able to give his fee and voluntary consent to marriage
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but due to some psychological disorder, he is unable to assume the essential obligations of marriage. NOTE: As long as no appeal is taken to higher courts, the annulment of orders of said trial courts have the same function as divorce decrees. Q: Does Article 36 have retroactive effect? A: Yes. It applies to marriages solemnized before the effecivity of the Family Code. Under Article 39, such an action or defense shall prescribe in 10 years after the FC takes effect up to 1998. But if the marriage is celebrated after the effectivity of the Family Code, the action for declaration of nullity of marriage does not prescribe. Imprescriptibilty is the rule for marriages that are void for other grounds, such as lack of capacity to marry or absence of consent. Santos v. CA "Psychological incapacity" should refer to no less than a mental (not physical) incapacity that causes a party to be truly incognitive of the basic marital covenants that concomitantly must be assumed and discharged by the parties to the marriage which, as so expressed by Article 68 of the Family Code, include their mutual obligations to live together, observe love, respect and fidelity and render help and support. There is hardly any doubt that the intendment of the law has been to confine the meaning of "psychological incapacity" to the most serious cases of personality disorders clearly demonstrative of an utter intensitivity or inability to give meaning and significance to the marriage. The other forms of psychoses, if existing at the inception of marriage, like the state of a party being of unsound mind or concealment of drug addiction, habitual alcoholism, homosexuality or lesbianism, merely renders the marriage contract voidable pursuant to Article 46, Family Code. If drug addiction, habitual alcholism, lesbianism or homosexuality should occur only during the marriage, they become mere grounds for legal separation under Article 55 of the Family Code. These provisions of the Code, however, do not necessarily preclude the possibility of these various circumstances being themselves, depending on the degree and severity of the disorder, indicia of psychological incapacity. Divorce Under Roman law, entrance into and dissolution of marriage relation is treated as a private affair of the spouses. The Philippines does not adhere to this view: Art. 52. The judgment of annulment or of absolute nullity of the marriage, the partition and distribution of the properties of the spouses and the delivery of the children's presumptive legitimes shall be recorded in the appropriate civil registry and registries of property; otherwise, the same shall not affect third persons. (n) Although absolute divorce are considered contrary to our concept of public policy and morality, our courts have not gone as far as saying that all divorce decrees obtained everywhere in the world are void. Only Filipino couples as a general rule, are covered by the policy against absolute divorces. Aliens may obtain divorces abroad which may be recognized in the Philippines, provided they are valid according to their national law. Philippine Conflicts Rule on Divorce
As long as they are Filipino citizens, they cannot obtain a divorce decree abroad which would be recognized in the Philippines. Also, Philippine courts are not available to aliens for the purpose of obtaining absolute divorce decrees. ART. 26-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 capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (As amended by Executive Order 227) Barretto Gonzalez v. Gonzalez While the decisions of this court heretofore in refusing to recognize the validity of foreign divorce has usually been expressed in the negative and have been based upon lack of matrimonial domicile or fraud or collusion, we have not overlooked the provisions of the Civil Code now in force in these Islands. Article 9 thereof reads as follows: The laws relating to family rights and duties, or to the status, condition and legal capacity or persons, are binding upon Spaniards even though they reside in a foreign country. And article 11, the last part of which reads: . . . the prohibitive laws concerning persons, their acts and their property, and those intended to promote public order and good morals, shall nor be rendered without effect by any foreign laws or judgments or by anything done or any agreements entered into a foreign country. It is therefore a serious question whether any foreign divorce relating to citizens of the Philippine Islands, will be recognized in this jurisdiction, except it be for a cause, and under conditions for which the courts of Philippine Islands would grant a divorce. Arca v. Javier The courts in the Philippines can grant divorce only on the ground of adultery on the part of the wife or concubinage on the part of the husband, and if the decree is predicated on another ground, that decree cannot be enforced in this jurisdiction. The above pronouncement is sound as it is in keeping with the well known principle of Private International Law which prohibits the extension of a foreign judgment, or the law affecting the same, if it is contrary to the law or fundamental policy of the State of the forum. (Minor, Conflict of Laws, pp. 8-14). It is also in keeping with our concept or moral values which has always looked upon marriage as an institution. And such concept has actually crystallized in a more tangible manner when in the new Civil Code our people, through Congress, decided to eliminate altogether our law relative to divorce. Because of such concept we cannot but react adversely to any attempt to extend here the effect of a decree which is not in consonance with our customs, morals, and tradition. Recognition of foreign divorces under present law Because of the change by the Civil Codewhich in effect is a return to the Siete Partidas under which only legal separation or relative divorce was allowedit is pertinent to inquire whether foreign divorce decrees are entitled to recognition in the Philippines.
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Filipino couples cannot obtain absolute divorces abroad which will be entitled to recognition in the Philippines. No matter how long H and W, both Filipinos, may have resided in California, the rule is that a divorce decree they may obtain in California will not be considered valid in the Philippines. Where the absolute divorce decree involves alien spouses, the rule is to recognize the decree, if valid by their national law, in spite of the fact that internal municipal law may not recognize absolute divorce but only legal separation. Marriages where one of the spouses is a national of the Philippines Situation where by national law of the husband, she acquires his nationality by the mere fact of marriage Where the H is a citizen of the Philippines, and the alien wife becomes a Filipino citizen by the fact of marriage An alien woman who marries a Filipino becomes ipso facto a Filipino citizen provided she does not suffer from any of the disqualifications under the Revised Naturalization Law. Yet suppose despite her marriage to a Filipino national she retains her nationality in addition to her marriage to a Filipino national, she retains her nationality in addition to her Philippine citizenship and is able to obtain a divorce decree abroad which is valid under her own national law, may the H remarry? Art. 26. XXX 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 capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. (As amended by Executive Order 227) Van Dorn v. Romillo, Jr. There can be no question as to the validity of that Nevada divorce in any of the States of the United States. The decree is binding on private respondent as an American citizen. For instance, private respondent cannot sue petitioner, as her husband, in any State of the Union. What he is contending in this case is that the divorce is not valid and binding in this jurisdiction, the same being contrary to local law and public policy. It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, 5 only Philippine nationals are covered by the policy against absolute divorces the same being considered contrary to our concept of public police and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. 6 In this case, the divorce in Nevada released private respondent from the marriage from the standards of American law, under which divorce dissolves the marriage. As stated by the Federal Supreme Court of the United States in Atherton vs. Atherton, 45 L. Ed. 794, 799: The purpose and effect of a decree of divorce from the bond of matrimony by a court of competent jurisdiction are to change the existing status or domestic relation of husband and wife, and to free them both from the bond. The marriage tie when thus severed as to one party, ceases to bind either. A husband without a wife, or a wife without a husband, is unknown to the law. When the law provides, in the nature of a
penalty. that the guilty party shall not marry again, that party, as well as the other, is still absolutely freed from the bond of the former marriage. Thus, pursuant to his national law, private respondent is no longer the husband of petitioner. He would have no standing to sue in the case below as petitioner's husband entitled to exercise control over conjugal assets. As he is bound by the Decision of his own country's Court, which validly exercised jurisdiction over him, and whose decision he does not repudiate, he is estopped by his own representation before said Court from asserting his right over the alleged conjugal property. To maintain, as private respondent does, that, under our laws, petitioner has to be considered still married to private respondent and still subject to a wife's obligations under Article 109, et. seq. of the Civil Code cannot be just. Petitioner should not be obliged to live together with, observe respect and fidelity, and render support to private respondent. The latter should not continue to be one of her heirs with possible rights to conjugal property. She should not be discriminated against in her own country if the ends of justice are to be served. Relative divorce or legal separation or separation from bed and board Since this kind of divorce does not put an end to the marriage but merely authorizes the separation of the spouses, the marriage undergoes a very inconvenient suspension and is intended to operate as a continual invitation to the parties to return to their first love.
Legal Separation; Reconciliation as a precondition Art. 59. No legal separation may be decreed unless the Court has taken steps toward the reconciliation of the spouses and is fully satisfied, despite such efforts, that reconciliation is highly improbable. (n) Q: What are the consequences of reconciliation? A: Art. 66. The reconciliation referred to in the preceding Articles shall have the following consequences: (1) The legal separation proceedings, if still pending, shall thereby be terminated at whatever stage; and (2) The final decree of legal separation shall be set aside, but the separation of property and any forfeiture of the share of the guilty spouse already effected shall subsist, unless the spouses agree to revive their former property regime. The court's order containing the foregoing shall be recorded in the proper civil registries. (108a) Q: What are the causes of legal separation? A: 1. Adultery on the part of the W and concubinage on the part of the H as defined in the Penal Code;
44
2.
An attempt by one spouse against the life of the other.
Q: What are the grounds for legal separation? A: Art. 55. A petition for legal separation may be filed on any of the following grounds: (1) Repeated physical violence or grossly abusive conduct directed against the petitioner, a common child, or a child of the petitioner; (2) Physical violence or moral pressure to compel the petitioner to change religious or political affiliation; (3) Attempt of respondent to corrupt or induce the petitioner, a common child, or a child of the petitioner, to engage in prostitution, or connivance in such corruption or inducement; (4) Final judgment sentencing the respondent to imprisonment of more than six years, even if pardoned; (5) Drug addiction or habitual alcoholism of the respondent; (6) Lesbianism or homosexuality of the respondent; (7) Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad; (8) Sexual infidelity or perversion; (9) Attempt by the respondent against the life of the petitioner; or (10) Abandonment of petitioner by respondent without justifiable cause for more than one year. For purposes of this Article, the term "child" shall include a child by nature or by adoption. (9a) Q: Who may claim this action? A: It may be claimed only by the innocent spouse, provided there has been non-condonation of or consent to the adultery or concubinage. Where both spouses are offenders, a legal separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition. Q: What are the grounds to deny a petition for legal separation? A: Art. 56. The petition for legal separation shall be denied on any of the following grounds: (1) Where the aggrieved party has condoned the offense or act complained of; (2) Where the aggrieved party has consented to the commission of the offense or act complained of; (3) Where there is connivance between the parties in the commission of the offense or act constituting the ground for legal separation; (4) Where both parties have given ground for legal separation; (5) Where there is collusion between the parties to obtain decree of legal separation; or (6) Where the action is barred by prescription. (100a) Art. 57. An action for legal separation shall be filed within five years from the time of the occurrence of the cause. (102)
Art. 58. An action for legal separation shall in no case be tried before six months shall have elapsed since the filing of the petition. (103) Q: What are the effects of judicial decree of legal separation? A: Art. 61. After the filing of the petition for legal separation, the spouses shall be entitled to live separately from each other. The court, in the absence of a written agreement between the spouses, shall designate either of them or a third person to administer the absolute community or conjugal partnership property. The administrator appointed by the court shall have the same powers and duties as those of a guardian under the Rules of Court. (104a) Art. 62. During the pendency of the action for legal separation, the provisions of Article 49 shall likewise apply to the support of the spouses and the custody and support of the common children. (105a) Policy consideration on absolute divorce Total ban or divorce has resulted in at least 2 undesirable considerations: 1. Trend in favor of granting annulment or nullity of marriage where divorce would be the more honest and effective remedy; and Those with money and means are the only ones able to free themselves from the coercive reach of Philippine law either by changing their nationality or by mitigating to other countries. G. CONTRACTS Q: What is a contract? A: It is the meeting of minds between 2 persons whereby one binds himself, with respect to other, to give something or render some service. Although a contract may create a status like marriage or creates or transfers real rights or title to property (sale), the specific subject of contract in Conflict of Law is limited to purely civil or commercial transactions. Q: What are the basic policy considerations in contracts? A: 1. That of giving effect to the justified expectations of the contracting parties (protection of the expectations of the parties) The policy of carrying out their intention should result in enforcing their agreements in any state whose courts or agencies have the competence to hear and adjudicate cases brought before them.
2.
2.
Q: When does the Conflict of law arise in contracts? A: It is when there is a foreign element in the contract that problem arise, for then, the forum will have to decide what law should be
45
applied in determining the existence or nonexistence of a contract, as well as its validity, both extrinsic and intrinsic, and the capacity of the contracting parties. Q: What are the options of the court in which Extrinsic validity of contracts GR: Extrinsic validity of contracts is governed by the lex loci celebrationis or lex loci contractus. 2. Art. 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed. XXX
ii.
of the domicile in countries following the domiciliary theory; XPNs: a. Contracts involving alienation or encumbrance of properties, both real and personal in cases in which capacity of the contracting parties is governed by the lex situs.
In the Philippines, Art.15 of the NCC provides that capacity of a Filipino is governed by the Philippine law, and this is so because we follow the nationality theory.
Q: What law governs the capacity of the Filipino in the following specific problem? a. A 20 yr. old Filipino enters into a contract in Italy where the age of majority is 21. Can the Filipino later plead his incapacity under Italian law to avoid liability under the contract? An 18 yr. old alien, who has no capacity to contract under his national law wherein the age of majority is 21, enters into in the Philippines. Can he later plead his incapacity under his national law to evade the contract?
Q: Suppose a contract is entered into by parties in 2 different countries by cablegram, telefax, or fax. What is the place of execution? A: Art. 1319. Consent is manifested by the meeting of the offer
and the acceptance upon the thing and the cause which are to constitute the contract. The offer must be certain and the acceptance absolute. A qualified acceptance constitutes a counteroffer. Acceptance made by letter or telegram does not bind the offerer except from the time it came to his knowledge. The contract, in such a case, is presumed to have been entered into in the place where the offer was made. (1262a) Thus, the lex loci celebrationis is the country of execution. In American law however, a contract is deemed entered into in the place where the acceptance of the offer is mailed or posted. Q: Suppose the place of execution is merely casual or accidental like a Chinese and a Filipino who, meeting accidentally in Hong Kong, enter into a certain contract or agreement there to be performed in the Philippines. A: In such case, the law which has the most significant relationship to the transaction should be applied. Thus, the court should apply the law which the parties must have assumed would be applied to give effect to their transactionPhilippine law. XPN: 1. 2. 3. When the lex loci celebrationis contravenes an established and important policy of the forum; or To apply it would work gross injustice to the people of the forum; If the transaction is contra bonos mores. Capacity of Parties Q: What determines the capacity of parties to a contract? A: 1. Personal law of the parties i. By the national law of the parties in countries following the nationality theory, and by the law A:
b.
a. b.
No, because under Philippine law, he has capacity to contract. No, because to apply the natural law of the alien in determining his capacity to contract would require Filipinos to first ascertain what the personal law of that alien is sometime with great difficulty, such that business transactions with aliens would be greatly impeded.
RULE: a. If the contract is entered into in the Philippines, or the performance of the contract would be in the Philippines, we should apply, not the personal law of the parties, but the proper law of the contract or the law intended by the parties, to determine their capacity; We should limit the application of Art. 15 to agreements involving family and domestic relations, while we should apply the proper law of the contract in business or commercial transactions. Intrinsic validity GR: Intrinsic validity of contract is governed by the proper law of contractlex loci voluntatis or the lex loci intentionis: a. b. We have no specific provision of law applicable to conflict of law rules on the intrinsic validity of contracts; Yet, the policy of the law is to give effect to the intention of the parties. Art. 1306. The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy. (1255a)
b.
46
c.
Thus, we should apply the proper law of the contractlex loci voluntatis (the law expressly agreed upon by the parties) or the lex loci intentionis (law impliedly agreed upon by the parties) which is the law of the place that has the most substantial connection with the transaction, or the law that may the presumed to have been intended by the parties to bind their transaction.
REM, Antichresis
b. c.
Capacity of the parties lex situs Intrinsic validity- lex situs
These are governed by the lex situs because they are contracts of encumbrances of property, real or personal. But since they are accessory contracts, if the principal contract secured by them is void, they are also void. Contract of loan If it is mutuum, apply, rules on contracts in general: a. b. c. Extrinsic validity- lex loci celebrationis Capacity of the parties personal law of the parties Intrinsic validity- lex loci intentionis or lex loci voluntatis.
Q: What are the limitations on the courts choice of law in determining the validity of contracts? A: a. b. Parties cannot select a law that has no connection at all with the transaction; GR: If such law change, it is the new law that should be applied; XPN: When the change is so revolutionary that it could never have been contemplated by the parties. Several laws may be selected, each of which will govern the different elements of the transaction; If under the selected law, the contract is legal, but in the place of performance, it is illegal, the selected law should prevail and the contract should be considered legal. Otherwise, the place of performance, which could be merely accidental, will control. Besides, the place of performance may be different under different laws. Assuming that the law of the place of performance can be ascertained, still, questions of substantial and essential validity should be governed by the proper law of the contract. Only minor details, should be governed by the law of performance; While the parties may stipulate on the proper law of contract, they cannot stipulate on the jurisdiction of courts or to oust our courts of their jurisdiction; Parties cannot also contract away applicable provisions of our law that are heavily impressed with public interest or which involve public policy (like labor laws); Cognitive clause- specify which courts would have jurisdiction in case of breach or default in payment, or it may be one that waives the DRs right to notice (confession of judgment). Special kinds of contracts
c. d.
Lease of service (employment), agency, guaranty or suretyship
If it is commodatum, apply the lex situs because it is a real contract. These personal contracts, hence the law on contracts will apply: a. b. c. Extrinsic validity- lex loci celebrationis Capacity of the parties personal law of the parties Intrinsic validity- lex loci intentionis or lex loci voluntatis.
e.
But an agency to alienate or encumber real is governed by the lex situs. Contract of transportation or carriage This is a contract to render service; therefore, the law on contract applies: a. b. c. d. Extrinsic validity- lex loci celebrationis Capacity of the parties personal law of the parties Intrinsic validity- lex loci intentionis or lex loci voluntatis; Liability for loss, destruction or deterioration of goods in transit, the law of destination of goods; If the COGSA governs, the limitation of the liability of the carrier applies, unless the shipper declares the goods and inserts such declaration in the BOL. is for international air
f.
g.
h.
e. Barter, sale or donation a. b. c. Extrinsic validity- lex situs Capacity of the parties lex situs Intrinsic validity- lex situs
Lease of property
A.
B.
If it creates real rights, such as those fro a period of more than 1 year or is registered, apply lex situs; If the lease I from month to month, week to week, or day-day, and does not create real rights, apply the law on contracts: a. Extrinsic validity- lex situs b. Capacity of the parties lex situs c. Intrinsic validity- lex situs
If the contract transportation: a.
b.
Liability of the airline in case of death, injury to passengers, or loss or damage to cargo is governed by the Warsaw convention as amended; But if there was malice, gross negligence, bad faith, or improper discrimination on the part of the carrier or its agents, the carrier is liable for damages beyond those limited by the Warsaw Convention.
Pledge, CM,
a.
Extrinsic validity- lex situs
47
H.TORTS Q: What is tort? A: a. b. It is a legal wrong committed upon the person or property independent of contract; The concept of quasi-delict or culpa aquiliana includes all acts or omissions committed through fault or negligence causing damage to another, independent of contract; Includes all cases where a person damage to another through negligence, or with no intention to do so unintentional wrongs; In American law, tort has a broader meaning for it includes legal wrongs not only committed through negligence but also those committed with malice or willful intent independent of the contract. Concept of tort in the Philippines Art. 20. Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same. Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter. (1902a) Q: What law governs liability for torts? d. A: It is governed by the lex lox delicti commissiithe law of the place where the delict or wrong was committed; RATIO: a. State where the social disturbance occurred has the primary duty to redress the wrong and determine the effects of the injury; To compensate the victim for the damage or injury suffered. e. The rights and obligations of the parties in case of tort is determined by the local law of the state which has the most significant relationship to the occurrence and the parties. Saudi Arabia v. CA The Philippine law shall apply because it was in the Philippines that private respondent deceived plaintiffstewardess; P was working for R here; Ps nationality and domicile were here; we were intimately concerned with the ultimate outcome of the case not only for the benefit of the litigants but also for the vindication of our countrys system of law and justice in a transitional setting.
c.
d.
Q: What are the conflict rules on marine torts? A: a. If the tort is committed aboard a public vessel, whether on the high seas or in a foreign territorial waters, the law of the flag is the lex loci delciti commissii; If the tort is committed aboard a private merchant vessel on high seas, the law of registry is the lex loci delciti commissii; If 2 vessels collide and are from the same state, the law of registry is the lex loci delciti commissii; If the vessel come from different states with identical laws, apply said identical laws; If the vessel come from different states with different laws, the lex loci delciti commissii is the general maritime law as understood and applied by the forum where the case is filed.
b.
c.
Q: Is a foreign tort actionable or may be subject of an action for damages in the Philippines? A: Yes, provided that jurisdiction is acquired over the defendant and certain conditions are present: a. b. c. Foreign tort must not be penal in nature; Enforcement of the tortuous liability should not contravene our public policy; and Our judicial machinery must be adequate for such enforcement.
b.
Q: How is the locus delicti determined, especially if the wrong conduct is committed in one state and the injuries are sustained in another, or the conduct is a continuing act that spans several years? A: Civil law theory Locus delicti is where the act began; RATIO: The rule on torts are intended to regulate human conduct such that a person who willfully and negligently are contrary to the social norms must be held liable for the injury caused. a. Locus delicti is the place where the wrongful act became effective; b. RATIO: Without an injury, there is nothing to protect and there is no necessity for judicial relief. It is the place which has the most substantial connection with the wrongful act. State of the most significant relationship a. b.
NOTE: While procedural matters are governed by the lex fori Philippine law, since the case is filed here, all substantive matters are governed by the lex loci delciti commissii. i. Period of prescription of the action is governed by lex loci delciti commissii since under Philippine laws, prescription is substantive not purely procedural; Proper parties, measure of damages and question of whether the act complained of is considered the proximate cause of injury, are all governed by the lex loci delciti commissii; Burden of proof and the defenses that may be interposed by the D are also governed by lex loci delciti commissii. I. CORPORATIONS
Common law theory
ii.
Theory of Dr. Rabel
iii.
48
Q: What is a corporation? A: It is an artificial being created by operation of law, having the right of succession and powers, attributes and properties expressly authorized by law or incident to its existence. Q: What is a foreign corporation? A: It is one formed, organized or existing under any laws other than those of the Philippines and whose law allows Filipino citizens and corporations to do business in its own country or state. Q: What are the different theories in determining the personal or governing law of a corporation? A: Theory that personal law is the law of the place of incorporation A corporation can evade many responsibilities by simply organizing in one state and performing its functions in another state. NOTE: This is followed in the Philippines.
Even a defectively organized corporation which the law regards a de facto insofar as innocent third persons are concerned can possess a domicile for its de facto existence. Under the Corporation Code, the AOI of a Philippine corporation must state the place where the original office of the corporation is to be established or located which must be within the Philippines. Thus, the place of incorporation of a Philippine corporation is also its domicile. As for a foreign corporation that has been granted license to operate or to do business in the Philippines, it acquires domicile in this country by virtue of said license. Granger Associates v. Microwave Systems Inc. Purpose of requiring foreign corporations to secure a license to do business in the Philippines is to enable the courts to acquire jurisdiction over them or the regulation of their activities in our country. Q: What law governs the personal law of the corporation? A:
If the Corporation was organized in the Philippines, it is a Philippine or domestic corporation; if organized elsewhere or abroad, it is a foreign corporation. XPN: 1. For constitutional purposes, even if a corporation was incorporated in the Philippines, it cannot exploit or develop our natural resources or operate public utilities unless 60% of the capital is Filipino owned; War time purposes- apply the control test: pierce the veil of corporate identity and go into the nationality of the controlling SH to determine whether a corporation is an enemy corporation.
1. 2. 3. 4. 5. 6.
Requisites for the formation of the corporation; Required no. of incorporators and members of the BOD; The kinds of shares of stock allowed; Transfer of stocks in a way that it would be binding on the corporation; Issuance, amount and legality of the dividends; Powers and duties of the officers, SH, and members.
Q: What law governs the validity of the corporate acts and contracts? A: Sec. 129. Law applicable. - Any foreign corporation lawfully doing business in the Philippines shall be bound by all laws, rules and regulations applicable to domestic corporations of the same class, except such only as provide for the creation, formation, organization or dissolution of corporations or those which fix the relations, liabilities, responsibilities, or duties of stockholders, members, or officers of corporations to each other or to the corporation. (73a) Q: May a foreign corporation sue and be sued in the Philippines? A: Yes, if it has the necessary license to do business here. The license is required not to forbid corporation from performing single acts but not to prevent it from acquiring a domicile for purposes of business without taking the steps necessary to render it amenable to suit in the local courts. East International Import and Export v. Nankai Kogyo Co.
2.
Theory of the place or center of management Theory of the place of exploitation
Board may meet in different states although this defect may be cured by expressly providing in the AOI or by-laws where the principal meeting of the board is. Corporation may have its enterprise scattered all over the world. Besides, physical acts of the corporation are not as important as the decisions reached by its BOD.
Q: Where is the domicile of the corporation? A: Art. 51. When the law creating or recognizing them, or any other provision does not fix the domicile of juridical persons, the same shall be understood to be the place where their legal representation is established or where they exercise their principal functions. (41a)
Q: What does transacting or doing business mean? A: It connotes a continuity of business dealings and arrangements. Even a single act or transaction may be an act of ordinary business of the corporation if it is not merely incidental or casual but of such character as to distinctly indicate a purpose to do other business in
49
the state and to make the state a base of operations for the conduct of a part of the foreign corporations ordinary business. Q: How may our courts acquire jurisdiction over a foreign corporation doing business in the Philippines? A: By service of summons on: 1. 2. 3. Its residents agent designated in accordance with law for that purpose; If no such agent, on the government designated by law to that effect; or On such of its officers or agents within the Philippines.
Q: May a foreign corporation be sued after it had already withdrawn from business in the Philippines? A: Yes, on contracts previously entered into by it. Fairness demands that the citizens and residents of the Philippines be afforded the opportunity to sue in the foreign countries where they are domiciled. Conversely, the foreign corporation that has withdrawn should also be allowed to sue on validly existing contracts, entered into previous to the cessation of its business here. J. PROPERTY Q: Are the conflict of law rules on real and personal property the same? A: Lex situs or Lex rei sitae- the law of the place where the property is located or situated, with respect to real property. Thus, the law of the place where it is situated governs everything concerning real property. A reference to the lex situs of real property satisfies the need for certainty, predictabilty, anil uniformity, as well as the reasonable expectations of the parties, in dealing with real property. Recently, the same has been adopted with respect to personal properties so that situs is easily ascertainable, making it convenient for the parties and third persons who may be affected by rights in rem created over personal properties to have those rights enforced and made effective. RATIO: Personal property may be separated from its owner, who may be taxed on its account at the place of where the property is located, although he is not a domiciliary, citizen or resident of the state which imposed the tax. XPN: 1. Succession--
Q: Suppose a foreign corporation transacts business without first obtaining the necessary license, what is the status of its contract? A: The contract is unenforeceablethe contract cannot sue in courts until the necessary license is obtained. After the issuance of the license, suits may be instituted even on the pre-license contracts which are considered as valid. Yet, the person who contracted with the corporation may be considered in estoppels if he had received benefits from the contract. Q: May a person sue a foreign that transacted business with him without a license? A: Yes, because the corporation cannot put up a defense its own failure to comply with the law. but the court must be able to acquire jurisdiction over the corporation. Q: If the corporation sells its products through an agent, is that doing business here? A: if the corporation sells its products in the Philippines through a resident merchant on commission basis, it is the merchant, not the corporation, that is doing business here. But if the foreign corporation sells its goods in the Philippines through an exclusive distributing agent, it is doing business here because the agent is acting only in behalf of its principal. Q: May a corporation not doing business in the Philippines sue? A: Yes; 1. 2. 3. In isolated transactions; To protect its reputation, corporate name and good will; For infringement of trademark or trade-name, unfair competition or false description of products and infringement of patent.
Art. 16 XXX However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found. (10a) 2. Contracts involving real property but do not deal with title or real rights over the property, the issue being the contractual rights and liabilities of parties, are governed by proper law of the contract: lex loci voluntatis or the lex loci intentionis. In contracts where real property is given as security by way of mortgage to secure a principal contract (loan), the loan is governed by the proper law of the contract between the parties, while the accessory contract of mortgage is governed by the lex situs; While the validity of a transfer of land must be determined by the lex situs, the validity of a contract to transfer is determined by the proper law of the contract.
Q: What is the rule that applies to multinational or transnational corporations? 3. A: Since they are incorporated under the local law of each state where they are doing business, the branches are separate entitles governed by the said local laws, but in reality, the major decisions in their operation and management are controlled by their mother or parent corporation. Yet, the branches, having incorporated in the states where they are established, are governed by the internal law of the states, and their personal laws are the local laws of the host states.
4.
50
Q: Does the Philippines adopt the Lex situs or Lex rei sitae? A: Yes. Art. 16. Real property as well as personal property is subject to the law of the country where it is stipulated. Xxx Q: What matters connected with real property are governed by lex situs? A: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. Extrinsic and intrinsic validity of transactions over real property such as alienation, transfers and mortgages; capacity of the contracting parties; interpretation of documents; effects of ownership; co-ownership; Accession; usufruct; lease, easement; queting of title, registration; prescription; police power; eminent domain; taxation.
Credits debts
or
a.
b.
c.
d.
Involuntary transfer or assignment of debtsitus is the place where the DR may be served with summons, which is his domicile; Voluntary assignment or transfer of credit proper of the contract controlsproper law of the original transaction out of which the close in action or credit arose. Situs of debt for taxation purpose is the domicile of the CR, where the collectible credit may be taxed; For the purpose of administering debts, the situs is the place where the assets of the DR are actually situated.
Negotiable instruments
Q: What law determines whether the instrument is negotiable or not? A: Law governing the rights embodied in the instrument. Thus, it is a Philippine check, Philippine law will apply; NOTE: The law that determines the validity of the transfer, delivery, or negotiation of negotiable instrument at the time of transfer, delivery or negotiation. a. Sales of corporate stocks are governed by the law of the place of incorporation, since it is there that the transfer is recorded in the books of the corporation. b. Attaching or execution CRs are not bound by the transfer unless entered into in the books of the corporation unless said CR actually knew of the unregistered transfer; c. CM or pledges of corporate shares of stock, even if registered in the corporate books, do not bind the corporation, but the parties are bound as long as they are validly entered into by them; d. Sale of corporate shares between parties is governed by the proper law of the contract because this is really a contract. In many cases, proper law of the contract is the place where the certificate is delivered to the buyer; e. Taxation on dividends received by the corporate shares is governed by the law of the place of incorporation. They are special privileges conferred by the government on an individual or a corporation and are subject to the law of the state that granted them. Art. 521. The goodwill of a business is property, and may be transferred together with the right to use the name under which the business is conducted. (n) The goodwill of the business, is governed by the law of the place where the business is carried on. GR: Patents, etc. are protected only by the state that granted or recognized them. Art. 520. A trade-mark or trade-name duly
Shares of stock of corporations
Q: What constructive suits is given to choses in possession that are usually in motion? A: 1. vessels are governed by: a. b. law of the flag, if it is a public vessel; law of the country or place of registry, if it is a private or commercial vessel. Yet, if the vessel is docked at a foreign port, said port is deemed as its temporary status.
2.
goods in transit are governed by: a. as to liability for loss, destruction or deterioration of goods in transit, the law of destination is applied; Art. 1753. The law of the country to which the goods are to be transported shall govern the liability of the common carrier for their loss, destruction or deterioration.
Franchises
Validity and effect of seizure of goods in transit are governed by law of the place where the goods were seized which is their temporary status; 5. Disposition or alienation of goods in transit is generally governed by the proper law of the contract between parties (lex loci voluntatis or the lex loci intentionis. Q: What are the rules governing constructive situs to intangible personal properties or choses in action? A:
b.
Goodwill of a business and taxation thereon
Patents, copyrights, trademarks, tradenames
51
and servicemarks
registered in the proper government bureau or office is owned by and pertains to the person, corporation, or firm registering the same, subject to the provisions of special laws. (n) R.A. No. 638 Section 7. A new section is hereby added to Republic Act Numbered One hundred and sixtysix, just below section twenty-one thereof, to read as follows: "Section 21-A. Any foreign corporation or juristic person to which a mark or trade-name has been registered or assigned under this act may bring an action hereinunder for infringement, for unfair competition, or false designation of origin and false description, whether or not it has been licensed to do business in the Philippines under Act Numbered Fourteen hundred and fifty-nine, as amended, otherwise known as the Corporation Law, at the time it brings complaint: Provided, That the country of which the said foreign corporation or juristic person is a citizen, or in which it is domiciled, by treaty, convention or law, grants a similar privilege to corporate or juristic persons of the Philippines." Article 8 of the Union Convention for the Protection of Industrial Property: a Trade name shall be protected in all countires of the Union without the obligation of filing of registration whether or not it forms part of the trade name. Philips Export B.V. v. CA A corporations right to use its corporate and trade name a property right, a right in rem which is entitled to protection like any other tangible property and cannot be impaired or defeated by subsequent appropriation by another corporation in the same field. Emerald Garment v. CA Actual use in commerce in the Philippines is an essential prerequisite for the acquisition of ownership over a trademark. Any foreign corporation, being a national or domiciliary of a country which is a party to a convention, treaty or agreement relating to intellectual property rights to which the Philippines is also a party o which extends reciprocal rights to our nationals by law shall be entitled to benefits to the extent necessary to give effect to any provision of such convention.
REFERENCES: Salonga, Jovito. Private International Law Sepio-Dy, Alicia V. Handbook on Conflicts of Laws. 2004. MPC Printers.
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Conflict of Laws - Hizon

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Conflict of Laws - Hizon

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NOTES ON CONFLICT OF LAWS Kenneth and King C.

Facultad de Derecho Civil

UNIVERSITY OF SANTO TOMAS

NOTES ON CONFLICT OF LAWS Kenneth and King C. Hizon

Facultad de Derecho Civil

UNIVERSITY OF SANTO TOMAS

NOTES ON CONFLICT OF LAWS Kenneth and King C. Hizon

As to nature As to transactions involved

Conflicts of Law Governs private individuals or corporations

Real Statutes Applied to immovable things within the territory

Facultad de Derecho Civil

UNIVERSITY OF SANTO TOMAS

NOTES ON CONFLICT OF LAWS Kenneth and King C. Hizon

Facultad de Derecho Civil

UNIVERSITY OF SANTO TOMAS

NOTES ON CONFLICT OF LAWS Kenneth and King C. Hizon

Facultad de Derecho Civil

UNIVERSITY OF SANTO TOMAS

NOTES ON CONFLICT OF LAWS Kenneth and King C. Hizon

Facultad de Derecho Civil

UNIVERSITY OF SANTO TOMAS

NOTES ON CONFLICT OF LAWS Kenneth and King C. Hizon

Sempio-Dy (2004) Q: What are the sources of Conflicts of Laws? A:

Facultad de Derecho Civil

UNIVERSITY OF SANTO TOMAS

NOTES ON CONFLICT OF LAWS Kenneth and King C. Hizon

Facultad de Derecho Civil

UNIVERSITY OF SANTO TOMAS

NOTES ON CONFLICT OF LAWS Kenneth and King C. Hizon

Jurisdiction over the resactions in rem, quasi-in rem, and in personam

Jurisdiction and the due process clause

Facultad de Derecho Civil

UNIVERSITY OF SANTO TOMAS

NOTES ON CONFLICT OF LAWS Kenneth and King C. Hizon

is kept authenticated by the seal of his office

If it has no jurisdiction, the case should be dismissed on that ground

Facultad de Derecho Civil

UNIVERSITY OF SANTO TOMAS

NOTES ON CONFLICT OF LAWS Kenneth and King C. Hizon

Facultad de Derecho Civil

UNIVERSITY OF SANTO TOMAS

NOTES ON CONFLICT OF LAWS Kenneth and King C. Hizon

Facultad de Derecho Civil

UNIVERSITY OF SANTO TOMAS

NOTES ON CONFLICT OF LAWS Kenneth and King C. Hizon

Facultad de Derecho Civil

UNIVERSITY OF SANTO TOMAS

NOTES ON CONFLICT OF LAWS Kenneth and King C. Hizon

Protection of vested rights theory

Facultad de Derecho Civil

UNIVERSITY OF SANTO TOMAS

NOTES ON CONFLICT OF LAWS Kenneth and King C. Hizon

Q: Give examples of escape devices A: 1. 2. 3. Renvoi Public policy Morality

Q: What are the 2 themes concerning choice of law?

Facultad de Derecho Civil

UNIVERSITY OF SANTO TOMAS

NOTES ON CONFLICT OF LAWS Kenneth and King C. Hizon

Facultad de Derecho Civil

UNIVERSITY OF SANTO TOMAS

NOTES ON CONFLICT OF LAWS Kenneth and King C. Hizon

Comparative approach (By Dr. Ernest Rabel)

Convenient Forum Theory