Lectures in Conflicts of Law

Atty. Tang
JRU-Crame Law 3

PROBLEM:
A Filipino gets married in China to a lovely, sexy female from Mexico, the following questions may
rightfully be asked:
The law of which country will govern the validity of the marriage?
Which particular legal system will govern their personal rights and obligations as husband and wife,
assuming the marriage is valid? How about their matrimonial property relations?
CONFLICTS OF LAWS OR PRIVATE INTERNATIONAL LAW
Is that part of the Municipal Law of a State which directs its courts and administrative agencies,
when confronted with a legal problem involving a FOREIGN ELEMENT, whether or not they should
apply a Foreign Law or Foreign Laws.
Four (4) important elements:
Part of the municipal law of a state;
Is a directive to courts and administrative agencies;
Is a legal problem involving a foreign element;
Either an application or a non-application of a foreign law or foreign laws.

1.
Part of Municipal Law of a State
Every state has its own municipal law, it follows quite naturally that each state has also its own
conflict of laws.
Hence, Philippine Conflict of Laws is that part of the municipal law of the Philippines which directs its
courts and administrative agencies, when confronted with a legal problem involving a foreign element,
whether or not they should apply a foreign law or foreign laws.

2.

Direction to Courts and Administrative Agencies

Judicial tribunals of a country are called upon to decide or resolve conflicts problems.
Various administrative agencies of the state e.g. DFA, BI, SEC and the like decide PRELIMINARILY a
given controversy involving a foreign factor.

3.
Legal Problem Involving a Foreign Element
Foreign element has to be present before the matter can be considered a conflicts problem.
Eliminate the foreign element and the problem is obviously NOT a question calling for private
international law.
Problem: An Ilocana marries a Tagalog in Davao, the priest being a resident of Visayan region, what
law governs the validity of the marriage?
Make the groom, however, a Japanese, or make the bride a mestizilla from Spain, or let the
wedding take place somewhere in China, and immediately, a problem in conflict of laws, will arise,
namely: the law of which country governs the validity of the marriage contract, assuming that indeed
a marriage has really taken place?
4.

Application or Non-Application of a Foreign Law or Foreign Laws

Determine jurisdiction or willing to assume such jurisdiction;
Application of Local law or Foreign law;

Apply directly Philippine internal law in the resolution of the problem (as when, for instance, the
proper foreign law has not been properly pleaded and proved).
Questions:
In applying the law of a foreign state, does not a sovereign state recognize the superiority of another
state?
In recognizing the principles of a foreign legal system, do we not implicitly admit the inadequacy of
our own jurisprudence?
Rules of Private International Law
Private International Law do not derive force from a power superior to the sovereign states which
recognizes and enforce them;
The very essence of a sovereign state is that it has no superior;
It is the fundamental principles of the law that each sovereign state is supreme within its own limits;
When effect is given to a foreign law, it is only because the municipal law of that state temporarily
abdicates its supreme authority in favor of the foreign law, which for the time being, with reference to
that particular matter, becomes itself, by will of that state, its municipal law.
Basic cause for Conflicts Problems
Variance in the municipal laws of the countries involved;
Multiplicity of governments with separate legal system;
Municipal legislation, by its very nature, tends to be diverse because each group of people is virtually
a nation in itself, with a culture, a language, and a religion peculiarly its own: with varying moods and
national tempers; with distinctive customs, traditions, ideals and beliefs.
Examples of Diversity in laws and interpretations
Wills Oral wills not allowed in Philippines; in Massachusetts, U.S.A., an oral will is valid only if
executed by soldiers in actual service;
Marriage In Mustang, Tibet, on account of the scarcity of females and the sterility of the agricultural
soil, a woman is allowed to have several husbands, usually brothers.
Divorce Philippines does not recognize absolute divorce.
Scope of Functions of Conflict of Laws
Determination of which country has jurisdiction;
Choice of Laws applicable to a particular case of either the local or the foreign law;
Determination of the force, validity and effectiveness of a foreign judgment.

Sources of Conflict of Laws

Indirect sources: the natural moral law, and the works of writers;
Direct sources: constitutions, codifications, special laws, treaties and conventions, judicial decisions,
and international customs.
Indirect sources:
Natural moral law rule of human conduct implanted by God in our nature and in our conscience,
urging us to do right and avoid evil.
Works of writers works of legal scholars on Conflict of Laws wherein their writings have influenced
judicial decisions on the subject. Some of the famous writers are: H.G. Goodrich; R.C. Minor;
Graveson; E. Rabel; J.H. Beale; etc.

Direct sources:
Constitution the fundamental law to which all laws must conform and all authorities, including the
highest officials of the land, must bow. It contains some conflicts rules when it enumerates who are
Filipino citizens.
Codification Civil Code, Code of Commerce, and Family Code.
Special Laws Insurance Act, Patent Law, Foreign Investment Act, etc.,
Judicial Decisions Art. 8 of the Civil Code, judicial decisions applying or interpreting the laws or the
Constitution shall form part of the legal system of the Philippines.
Treaties and Conventions Warsaw Convention of 1929 on airline liability; Extradition treaties with
HK;China;Indonesia;Spain;South Korea;Australia;Canada; Switzerland;Micronesia and United States.
International customs lex situs, lex loci celebrationis, lex nationalii or lex domicilii, principle of
territoriality, and principle of generality.
Principle of Territoriality
Felony is punishable only in the territorial jurisdiction where it is committed. Exception is the
well established rule of international law that diplomatic representatives, such as ambassadors or
public ministers.
Principle of Generality
States that the criminal laws of a country bind both the citizens and the aliens who are in the
said country or territory. This principle is enunciated in Art. 14 of our Civil Code: Penal laws and
those of public security and safety shall be obligatory upon all who live or sojourn in Philippine
territory, subject to the principle of public international law and to treaty stipulations.

Ways in Disposing Conflicts Cases

Dismiss the case, either because of lack of jurisdiction or refusal to assume jurisdiction over the case;
Assume jurisdiction over the case and apply the internal law of the forum (lex fori); or
Assume jurisdiction over the case and take into account or apply the law of some other State or
States.
Jurisdiction under International Law
The right of a State to exercise authority over persons and things within its boundaries, subject to
certain exceptions.
Thus, a State does not assume jurisdiction over traveling sovereigns, ambassadors, and diplomatic
representatives of other States.
Judicial Jurisdiction
The legal authority of a State to exercise authority, through its courts or agencies, to hear and
adjudicate cases.
It is the power of a court or agency to hear and determine an issue upon which its decision is sought.
Factors required in order for State to hear and decide cases
The presence, submission, or appearance of the parties or one of them;
The doing of certain acts within the State;
The fact that the property involved in the litigation is in the forum;
The fact that the parties are either citizens or residents of the State.
In the absence of such minimum contacts, a judgment rendered by the courts of one State may be
refused recognition by other States.
Types of Judicial Jurisdiction

Jurisdiction over the subject matter;

Jurisdiction over the person;
Jurisdiction over the res;
Proceeding in rem e.g., land registration, or annulment of marriage.
Quasi in rem directed against the interests of particular persons in a thing such as action for
foreclosure of mortgage.

Refusal to Assume Jurisdiction due to Forum non conveniens

The evidence and the witnesses may not be readily available;
The court dockets of the forum may already be clogged which may hamper the speedy administration
of justice;
The evils forum-shopping
The forum has no particular interest in the case; the parties may either be citizens or residents; the
subject matter of the litigation had evolved somewhere else;
Other courts are open and the case may be better tried in said courts.
Assumption of Jurisdiction
Apply the internal or domestic law (lex fori);
Apply the proper foreign law (lex causae).
Application of the Internal or Domestic Law
When the law of the forum expressly so provides in its conflicts rules;
When the proper foreign law has not been properly pleaded and proved;
When the case involves any of the exception to the application of the proper foreign law.

When the law expressly provides for the application of Internal Law
Art. 80 FC In the absence of a contrary stipulation in a marriage settlement, the property
relations of the spouses shall be governed by Philippines laws, regardless of the place of the
celebration of the marriage and their residence.
Art. 1039 CC Capacity to succeed is governed by the law of the nation of the decedent.
When the proper foreign law has not been properly pleaded and proved
No judicial notice of any foreign law. If not properly pleaded and proved, the presumption is that
foreign law is the same as the local or internal law.
Proof of written foreign law:
a. official publication thereof; or
b. by a copy attested by the officer having the legal custody of the record, or by his deputy, and
accompanied with a certificate that such officer has custody and the law is in force at that time.
Proof of Unwritten foreign law:
a. Oral testimony of expert witnesses; or
b. By printed and published books of reports of decision of the country involved, if proved to be
commonly admitted in such courts.
Exception to the application of the proper Foreign Law
When the enforcement of the foreign law would run counter to an important public policy of the forum;
e.g. Two Filipinos made joint wills while they were in Germany. In said country joint wills are valid.
May the joint wills be successfully probated in the Philippines?
No, because they are contrary to Philippine public policy. Art 818 CC. Two or more persons
cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the
benefit of a third person.

Where the application of foreign law would infringe good morality as understood in the forum; e.g.
prostitution; agreements to reward crime; transactions that ultimately lead to human slavery or
involuntary servitude.
All these even if valid in the place where agreed upon will not be countenanced in the
Philippines.
When the foreign law is penal in nature; (principle of territoriality)
When the foreign law is procedural in nature;(no vested rights in the rules of procedure)
e.g. An American, used to trials by jury in the United States, cannot insist on a jury trial in the
Philippines in case he is accused of a crime he has committed in our country.
When the question involves real or personal property situated in the forum (lex situs);
When the foreign law is fiscal (revenue-producing; e.g. collection of taxes) or administrative in
nature;
When the application of foreign law would involve injustice to the citizens or residents of the
forum; e.g. In State Y, a person 15 years of age can validly contract. A Filipino boy, 15 years
old, contracts with another in said state.
If we assume the contract to be binding on the boy, we shall be committing violence to our sense of
justice.
Upon the other hand, if a just liability is incurred, we ought not to hesitate on its enforcement.
Prevailing circumstances should naturally determine the justness of the claim.
Where the application of foreign law would endanger the vital interests of the State.
The national interests of the forum should not be jeopardized; thus, any foreign law, judgment, or
contract that may result in the undermining of our government processes will obviously be refused
enforcement in our forum;
e.g. A contract entered into between a Filipino employee and an alien government by virtue of which
the former is supposed to furnish the latter with secret or classified military maps involving the
defense of the Philippines.
Theories on why the Foreign Law may in some cases be given effect

Theory on Comity It makes for harmony in the relations between states. Application of the proper
foreign law is neither obligatory nor just a matter of courtesy; it is more of convenience and the desire
to give protection to our own citizens and residents. (Hilton v. Guyot, 159 U.S.113)
Comity based on reciprocity if local law is recognized in a foreign country, the forum should also
recognize the laws of that foreign country.
Comity based on the persuasiveness of a foreign judgment whether or not foreign country
recognizes our laws is of no moment; what is important is that the foreign judgment is meritorious and
rendered with jurisdiction.
Theory of Vested Rights
It is not the foreign law that is being enforced but simply the vested rights that have been vested
under such foreign law or judgment.
In King v. Sarria, 69 N.Y. 24, the court held that a right having been created by the appropriate
law, the recognition of its existence follows everywhere.
Theory of Local Law
The adherents of this school of thought believe that we apply foreign law not because it is foreign,
but because our own rules by applying similar rules require us to do so: hence, it is as if the foreign
law has become part and parcel of our own local law.
e.g. A Chinese national dies, leaving properties located in the Philippines, the succession to his
estate shall be governed by the law of his nationality,Chinese law. (2 nd par., Art. 16, Civil Code).

Under the Local Law Theory, we do not apply Chinese law itself. What we do apply is our own law,
the 2nd par. Art. 16 Civil Code which, for purposes of litigation, incorporates unto itself the Chinese law
on succession.
Theory of Harmony of Laws
To apply the proper foreign law so that, respective of the forum, the solution will be the same, or
approximately the same.
e.g. An ordinary contract is entered into in London, the extrinsic validity of the contract should
be governed by British Law. Even if the question is raised elsewhere, say in Philippines, the extrinsic
validity should still be tested by British Law, the lex loci celebrationes. (1st par., Art.17, Civil Code)
And so, as long as the contract is valid under British Law, it should be valid everywhere.
Theory of Justice
The purpose of all law is to dispense justice, but the problem with this theory is that there is no
fixed concept of justice because almost every man has his own notion of fairness and equity.
What is sought to be enforced is not a law or statue but a judgment of a foreign court which does
not have automatic extraterritorial application.
e.g. The class suit of the 10,000 torture victims. They won the biggest judgment ever -$2 billion.
The judgment has been affirmed by no less than the Supreme Court of the United States. It is now
final. Yet it is still to be enforced through the local courts.
The Right Theory
The truth may be found in the combination of the theories:
a. that sometimes we have to apply the proper foreign law because courtesy, convenience, and
international duty so demand;
b. that there are vested rights we cannot conceivably ignore;
c. that all too often the foreign law has apparently become part and parcel of our law;
d. that identical situations should be resolved by identical remedies, irrespective of the forum; and
finally
f. that to do otherwise may ultimately result in the negation of justice.
NATURE AND COMPOSITION OF CONFLICTS RULES
Conflict rules are the provisions found in a countrys municipal law which govern factual
situations involving a foreign element.

Examples:
Art. 810. A person may execute a holographic will which must be entirely written, dated, and signed
by the testator himself. It is subject to no other form, and may be made in or out of the Philippines,
and need not be witnessed.
Art. 185. When a Filipino is in a foreign country, he is authorized to make a will in any of the forms
established by the law in the country in which he may be. Such will may be probated in the
Philippines.
Art. 1039. Capacity to succeed is governed by the law of the nation of the deceased.
Art. 1753. The law of the country to which the goods are to be transported shall govern the
liability of the of the common carrier for their loss, destruction, or deterioration.
Art. 15. Laws relating to family rights and duties, or to the status, condition, and legal capacity
of persons are binding upon citizens of the Philippines, even though living abroad.
Art. 16. Real property as well as personal property is subject to the law of the country where it
is situated.

However, intestate and testamentary successions, both with respect to the order of
succession and to the amount of successional rights and to the intrinsic validity of testamentary
provisions, shall be regulated by the national law of the person whose succession is under
consideration, whatever may be the nature of the property and regardless of the country wherein said
property may be found.
Art. 26. All marriages solemnized outside the Philippines in accordance with the laws in force in the
country where they were solemnized and valid there as such, shall also be valid in this country,
except those prohibited under Articles 35(1),(4),(5)and(6),36,37,and 38.
Where a marriage between a Filipino citizen and a foreigner is validly celebrated, and a
divorce is thereafter validly obtained abroad by the alien spouse, the Filipino spouse shall have the
capacity to remarry under Philippine law.
Composition of Conflicts Rules
Factual situation the set of facts presenting the conflicts problem;
Point of contact or connecting factor the law of the country with which the factual is most
intimately connected.

ILLUSTRATION
capacity to succeed is governed by the law of the nation of the decedent. (Art. 1039 Civil Code)
What is the factual situation?
Capacity to succeed.
What is the point of contact?
Law of the nation of the decedent.
Real property as well as personal property is subject to the law of the country where it is situated.
(1st par., Art. 16, Civil Code)
What is the factual situation?
Real property as well as personal property.
What is the point of contact?
The law of the country where it is situated.
Characterization of Conflicts Rules
Characterization is the process of determining under what category a certain set of facts or rules fall.
Sometimes it is called qualification or classification.
The purpose of characterization is to enable the forum to select the proper law and assign a disputed
question to an area in substantive law, such as torts, contracts, family law or property.
Factors that give rise to the problem of characterization:
Different legal systems attach to the same legal term with different meanings; (e.g. domicile,
marriage)
Different legal systems may contain ideas or conceptions completely unknown to one another;
Different legal systems apply different principles for the solution of problems which, in general terms,
are of a common nature.
STEPS IN CHARACTERIZATION
The determination of the facts involved no foreign element is involved, no problem in Conflicts of
Laws arise;
The characterization of the factual situation whether the problem is one of succession, tort, contract,
or of conjugal marital rights;
Example of Characterization of the factual situation:

A Japanese wife dies. Her Chinese husband claims the entire conjugal property in the Philippines
as his, alleging that under Chinese law on marital property, the entire conjugal property is his and that
this so not because of succession, but because of accretion. Whose characterization of the factual
situation shall apply, Chinese or Philippine law?
Under our own law, this is clearly a problem, not of accretion, but of succession. Characterization
of the forum apply hence its Philippine law.

The determination of the conflicts rule which is to be applied conflicts rule of the forum as it still
have to ascertain the precise foreign country that has the nearest or the most intimate connection
with the facts that have been brought out.
The characterization of the point of contact or the connector factor whose characterization of the
point of contact should be adhered to?
Atong dies in the Philippines, with personal and real properties situated here. He was a
naturalized Filipino citizen, but inasmuch as he had failed to comply with certain requisites of Chinese
law, China up to the time of his death still considered him a Chinese National. What is his nationality
at the time of his death?
Applying Chinese characterization, he was a Chinese; applying our characterization, he was
already a Filipino. Whose characterization must be followed? This is a problem in the
characterization of the point of contact.
The characterization of the forum must prevail because of the time-honored principle that
nationality is a matter exclusively determinable by the country concerned.
Exception:
If problems deals with real or personal property, lex situs govern, particularly if the question deals
with the validity of their disposition or alienation, or the capacity of the contracting parties..
If the forum is merely an incidental place of trial, the characterization of the forum has to give way to
any common characterization that may exist in the states involved.
The characterization of the problem as substantive or procedural.
Procedural matters are governed by the law of the forum.
Statute of Frauds and periods of prescription are view differently, some consider them as procedural
while others consider them as substantive law or vice versa. Whose characterization shall prevail?
Consider the prescriptive period or the Statute of Frauds that the parties had in mind at the time the
transaction took place.
ILLUSTRATION:
A, an Englishman, borrowed a sum of money in England from B, another Englishman. The
contract was evidenced by a written document, a promissory note. The contract subsequently
matured. Six (6) years after maturity, suit was brought in the Philippines by B against A for the
recovery of the amount borrowed. The prescriptive period to sue on written contract is 4 yrs. in
England; in Philippines is 10 yrs. Has the cause of action prescribed?
Regardless of the Philippine or English characterization of prescription, the action has
prescribed as English law was evidently intended by the parties to govern their contract.

The Pleading and Proving of the Proper Foreign Law.

The application of the proper foreign law to the problem Once the forum have ascertained the
pertinent fact, characterized the situation and the point of contact, made up its mind as to the proper
conflicts rule, and been satisfied with the relevancy, competency, and admissibility of the foreign law
or laws involved, nothing else remains except the application of the selected proper law to the
problem at hand.

THEORIES ON CHARACTERIZATION
The lex fori theory the forum merely considers its own concepts its own characterization. Grave
injustice may apply unless the characterization of the foreign state is considered;
The lex causae theory the forum follow the characterization of the foreign state that is the principal
point of contact. Drawback is that the forum does not know exactly what the principal point of contact
is until after it shall have made a characterization of the factual situation;
The universal analytical or comparative approach theory characterization comes only after a
general comparative analytical study of the jurisprudence of all the states involved.
The dual theory of lex fori and les causae similar comparative approach theory except that instead
of considering worldwide conceptions, only two concepts enter into the picture the characterization of
the lex fori and that of the lex fori and that of the lex causae.
The autonomous theory the forum consider the characterization of the country referred to in the
conflicts rule of the lex causae. (e.g. if the characterization in the forum State A points to State B as
the lex causae and the conflicts rule in state B refers to State C as the proper point of contact, it is
the characterization in State C which must be used by State A. This theory has hardly any follower.
The totality theory A very simple theory; get the characterization intended by the parties; or to put it
more elaborately, get the law intended by the parties to apply, and then proceed to apply the
characterization given by the intended law. The trouble with this theory is that sometimes it is hard to
discover exactly what law was intended by the parties.
THE THEORY OF THE PERSONAL LAW
Personal Law is the law that attaches to an individual, wherever he may go; a law that
generally governs his status, his capacity, his family relations, and the consequences of his
actuations; this personal law may be his national law or his domiciliary law or the law of the
situs, depending upon the theory applied and enforced in the forum.
CAPACITY
Capacity is a part of status and the sum total of ones rights and obligations.
Two (2) kinds of capacity (Art. 37 Civil Code)
1. Capacity to act power to do acts with legal effects; this is acquired and may be lost.
2. Juridical capacity is the fitness to be the subject of legal relations, is inherent in every
natural person and is lost only through death.
STATUS
Status is the sum total of an individuals qualities and relationships, more or less permanent, with
which the state is concerned.
Components of status:
1. Being married or unmarried, widowed or divorced;
2. Being a legitimate or an illegitimate child;
3. Being a minor or of major age; and
4. Having the capacity to enter into transactions.
Characteristics of Status
1. Status is conferred principally by the state not by the individual.
2. Status is a matter of public or social interest.
3. Status being a concept of social order, cannot easily be terminated at the mere will or desire
of the parties concerned.
4. Status is generally supposed to have a universal character; when a certain status is created
by law of one country, it is GENERALLY judicially recognized all over the world.

THEORIES ON PERSONAL LAW

Three (3) theories on Personal Law:
1. The NATIONALITY theory;
2. The DOMICILIARY theory; and
3. The SITUS theory.
NATIONALITY THEORY
Nationality theory is the theory by virtue of which the status and capacity of an individual are
generally governed by the law of his nationality.
Nationality is membership in an ethnic, social, racial, and cultural group.
Philippine Conflicts of Laws consider nationality and citizenship as synonymous terms.
Citizenship is membership in a political society.
CITIZENS OF THE PHILIPPINES
Before the advent of Spain in our country, there were no Filipino citizens. Our inhabitants dwelt
in isolated barangays under various headsmen. When Spain came, she made all our people subjects
of Spain thus, there were still no Filipino citizens. With the coming of the Americans, our political
status was clarified by the U.S. Congress, conformably with the provisions of the Treaty of Paris on
December 10, 1898 that transferred our country from Spanish to American sovereignty.
Philippine Bill of 1902 (U.S. Act of July 1, 1902) provided in Section 4 thereof
That all inhabitants of the Philippine Islands continuing to reside therein who were Spanish
subjects on April 11, 1899, and then resided in said Islands, and their children born subsequent
thereto, shall be deemed and held to be citizens of the Philippine Island and as such entitled to the
protection of the United States, except such as shall have elected to preserve their allegiance to the
Crown of Spain in accordance with the provisions of the treaty of peace between the United States
and Spain signed at Paris, December 10, 1898.
THREE KINDS OF CITIZENS IN THE PHILIPPINES
1. Natural-born citizens- those who are citizens of the Philippine from birth without having to perform any
act to acquire or perfect their Philippine citizenship. (Art.IV, Sec. 2, The 1987 Philippine Constitution)
2. Naturalized citizens citizens who become such through judicial proceeding.
3. Citizen by election those who by virtue of certain legal provisions, become such by choosing (or
electing) Philippine citizenship at the age of twenty-one (21) or within a reasonable time thereafter.
THEORIES ON WHETHER PLACE OR ANCESTRY DETERMINES CITIZENSHIP
Jus soli citizenship by birth on the country he was born.
Jus sanguinis One follows the citizenship of his parents; this is citizenship by blood.

HOW PHILIPPINE CITIZENSHIP MAY BE LOST

By naturalization in foreign countries;
By express renunciation of citizenship;
By subscribing to an oath of allegiance to support the constitution or laws of a foreign country upon
attaining 21 yrs. of age or more;
By rendering service to, or accepting commission in, the armed forces of a foreign country;
By cancellation of the certificate of naturalization;
By having been declared by competent authority, a deserter of the Philippines armed forces in time of
war, unless subsequently, a plenary pardon or amnesty has been granted; and
In the case of woman, upon her marriage to a foreigner, if by virtue of the laws in force in her
husbands country, she acquires his nationality.

HOW PHILIPPINE CITIZENSHIP MAY BE REACQUIRED

By naturalization;
By repatriation; and
By direct act of National Assembly (now Congress).