PHIL.

CONFLICT of LAWS > definition: Portion of the municipal law which gives authority to the courts and administrative agencies, when confronted with legal issues concerning a foreign element whether to apply the respective foreign law . > elements : 1. part of the municipal law 2. Foreign element is involve in the controversy itself 3. Authority to hear conflict cases is given by law to courts and Respective administrative agencies 4. Discretionary on the court whether to apply the foreign law In resolution thereof DISTINCTIONS: Conflict of laws. 1. municipal in character Law of nations - International in character - sovereign states or entities with international personalities - affects public interests

2. Dealt by private individuals.

3. Transactions are of or bet private individuals 4. Remedy is to resort to municipal

- may either be of forcible remedy ( severance of diplomatic relation, war Reprisals, embargo, Boycott, blockades, Non-intercourse and collection under the Measures provided by UN Charter)

SOURCES : A) Direct > jurisprudence , treaties , conventions , codifications, special laws, international customs and constitutions. B) Indirect > natural moral law and works of writers KINDS : 1. Unilateral / one sided rule - Phil law is to be applied ( art 15 ) 2. Multilateral / all sided rule. Art 16 Composition 1. Factual situation - operative facts raised 2. Point of contact/connecting factor - legal consequences or answers to legal questions. IN CASE OF CONFLICT BET A TREATY and MUN LAW, W/C SHLD. PREVAIL? Ans: One of the requisites that a treaty be validly entered into is that it should be in conformity with the principles of the constitutions aside from the constitutional mandate that it should be duly concurred by 2/3 of the members of the congress. Treaties being enforced are deemed to have meet the constitutionality requirement , however, given the fact that though great effort has been made to make it relatively in agreement with the municipal law, a conflict occurs, the constitution should

prevail. That is on the standpoint of our sovereignty. On the international stand, treaties should prevail for it is a contract between states, binding to the contracting parties notwithstanding the rights and obligations it established. CONFLICT RULES OF THE PHIL. Memorize 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. (unilateral application ) 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. 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. 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 the 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. JURISDICTION : Definition: the power of the state to create legal interest which the other other states would recognize. YARDSTICK : the law of the forum ( constitution ) KINDS : A) jurisdiction over the subject matter - generally conferred by law as the authority to hear and decide cases. (allegations in the Petition + payment of filing fee ) B) jurisdiction over the person - power of the court to render judgment binding bet the defendant and plaintiff; Plaintiff/Complainant - at the time the complaint is filed in court Defendant -acquired by service of summons service by coercive process 1. personal/substituted 2. voluntary appearance 3. Service by publication ( merely for cases in rem or quasi in rem - over the thing or status, but not on in personam ) ex. A, American citizen married B, Filipina in the Phil. Because of the marriage, A was able to acquire a piece of land both in their name. However, year after the marriage celebration, A left the country. He didnt return at all and B have no knowledge at all of his whereabouts for almost 4yrs already. B, fell in love subsequently with C and would want to spend the rest of her life with him. She instituted a case for legal presumption of death for her husband for she wishes to contract marriage anew with C. Dissolution of the property regime follows. Since A's whereabouts is not known to her, she had no recourse of knowing whether A has outstanding creditors. She made the notice to

creditors and summon to A by publication. Is The Service Binding? Ans. Yes, the service of summon by publication is binding. The action instituted is in rem. service by publication is sufficient to acquire jurisdiction over the person of A. However, if instead of disappearance, A happened to marry somebody in his country and B would also want to marry C and wishes to annul her marriage with him but have no knowledge of his exact address at the moment, is service by publication sufficient to the court to acquire jurisdiction over A's person? Ans. Yes, it is likewise sufficient being the nature of the case as on in rem and not in personal. What if A sired B a daughter and she would want to ask for financial support from him? Attaching the property in their name, is service by publication appropriate? Ans. No, the case is in personam. Personal or substituted service is required being part of the due process requirement. However, wit respect to the standing of the property, the portion of A may be exhausted to satisfy the support being asked by B applying the rules in the NCC. But beyond such property, the court has no power to impel A unless due service of summon is complied with. Query Assuming that the court has jurisdiction over the case, is assumption thereof mandatory? Ans: No for Assumption of jurisdiction is discretionary on the courts. Refusal to assume jurisdiction thereof is always due to forum non-conveniens reasons, to wit: 1. Inavailability of the parties and evidences 2. Clogging of cases in court which would necessarily hamper the speedy disposition thereof 3. Avoidance of forum -shopping violation 4. Forum has no particular interest thereto 5. Others courts provides a better jurisdiction over the case Case: Company A, US juridical person, entered into contract with B, a company organized by the laws of Singapore. B, being an international entity specializing in stock exchange, was accorded with foreign legal recognition in the Phil and permitted to operate thereto. B even put up a branch office in Makati as the liaison office of its main office situated in Australia. Company A filed a collection case with breach of contract before the Phil. Court. Are Phil Courts have jurisdiction over the said case? Ans: Phil Courts have no jurisdiction over the case. B is a recognized international entity and is duly accorded with immunity from suits in the Phil. This immunity is basically attached in the international charter creating them, duly recognized by the law of the nations and impossable for observance among member-states especially if it is allowed to operate within it's territorial boundaries. Immunity even extends to their officers, offices and quarters. Suppose B, is a juridical person under the Phil law, can the court take due cognizance of the case? Ans. Yes, courts, in their own accord, may take cognizance of the case especially that B is a corporation established by Phil law. Company A, by entering into a transaction with B, voluntarily submitted itself under the jurisdiction of the phil courts. The interest of the forum is present thereto.

However, it may still refuse to acquire jurisdiction over the case for non-conveniens reason if the circumstances surrounding the case require it so. Company A can't compel the court to hear the case and claim rights established. The only exception is if by resorting to other jurisdiction, the end of justice sought for can't be met for the rights and obligations established in their relation shall be modified by the application of the laws of the forum which would take cognizance thereof. * when can our court choose not to assume jurisdiction? Ans. I. Neither parties, subject matter nor particular interest thereto is covered by our jurisdiction or laws, II. Forum non-conveniens based on any of the ff: 1. Inavailability of the parties and evidences 2. Clogging of cases in court which would necessarily hamper the speedy disposition thereof 3. Avoidance of forum -shopping violation 4. Forum has no particular interest thereto 5. Others courts provides a better jurisdiction over the case How are conflict rules applied if the Phil Court assume jurisdiction of the case? Ans. The courts may either: a) apply the Domestic Law on the ff instances ; 1. The law of the forum expressly provides for its application 2. The foreign law fails to comply with the formal evidentiary requirements 3. Falls in the ambit of exceptions to the rule of the comity, to wit a. Foreign law is Contrary to the public policy of the forum b. contra bonos mores ( contrary to the gen accepted principle of morality ) c. Mere procedural matters d. Issues are of penal in nature or it involves contracts or judgements e. issues are purely fiscal(revenue producing) in character f. Would promote injustice to the forums own constituents g. Against national security and vital interests of the forum h. When it involves real or personal property situated in the forum( lex situs govern properties; personal properties, mobilia sequuntur personam ) b) apply the foreign law 1. Interest in one of the elements of the case 2. Jurisdiction on the subject matter and persons must be attendant 3. Compliance to the Rules on Evidence Basis (comity theory) * reciprocity * presumptive rights established by foreign judgement Theories why foreign laws maybe made to be applicable: I . THEORY of COMITY Rationale : it is a self- impose assumption of international duty to show courtesy to other states and to avoid gross inconvenience and injustice to litigants which leaves it discretionary whether to apply the foreign law or not. It is merely a favor and not a right supported by the rules of comity relations among nations. Without the comity agreement, the forum can't imposed its jurisdiction against the sovereignty of other states. KINDS of COMITY 1. Reciprocity - bilateral recognition by two states on the laws and jurisdiction of each other. 2. Persuasiveness of foreign judgment- foreign judgment may be given due

recognition on assumption that it is meritorious as given by a court of competent jurisdiction (reciprocity should exist also in this situation) II . THEORY of VESTED RIGHTS Rationale : once a right is established by appropriate law, recognition of its existence follows everywhere Basis : cardinal principle in territoriality that a judge can only convey decision based on its own law and can't sanction foreign laws and judgments. Extra-territorial recognition not on the law nor on its application but on the effects of its application. III . THEORY of LOCAL LAW Rationale : application of foreign law is mandated by our own law, conflict rules in itself incorporated in our own laws. IV . THEORY of HARMONY Rationale : application of foreign law shall promote uniformity in application irregardless of the forum which would take due cognizance over a case with the same subject matter to deny negation of justice. V . RIGHT THEORY Rationale : ( conglomeration of all theories ) FOREIGN JuDGMENTS Recognition vs enforcement A) differs in purpose Recognition is presentation of foreign judgment as a defense res judicata in a litigation before the forum's tribunal, while in enforcement, is to carry out said jjudgment given by the foreign tribunal and have the force of our law B) differs in the remedy sought to establish Recognition is merely the sense of justice, while enforcement requires act of sovereignty. C) as to action to be undertaken In recognition, no separate action is required, on the other hand, enforcement necessitates institution of new proceeding to make it effective inside the forum's jurisdiction. D) relativity Recognition doesn't involve enforcement but for the latter to be effected, recognition Is indispensable. Gen rule : Court's decisions are territorial in nature. It has no effect beyond its sanctioned jurisdiction. It is imperative that it be proved in accordance to rules set forth fby the Rules of Court ( conditions prescribed must be met ), to wit, 1. There should be adequate proof of said foreign judgment 2. The controversy of the judgment involved is non penal, fiscal or administrative in nature 3. Non existence of defects in its promulgation ( imperative that it is free of fraud, lack of jurisdiction, clear mistake of fact, collusion, want of notice ) 4. Must not be contrary to the public policy of the forum 5. Foreign judgment should be a res judicata in the country where it is implemented. ( rqts. Finality of judgment and jurisdiction of the court which hear and decide the case ) NON ALLOWANCE for ENFORCEMENT :

a. Lack of sufficient proof b. contrary to public order and policies c. There exist a contradictions relative to recognition d. Against the principle of human punishment GROUNDS for Non- RECOGNITION : a. Want of jurisdiction b. want of notice c. Vitiated by fraud, presence of collusion or clear mistake of law or fact Case: A, Filipina, married S, Chinese national in Hongkong. Subsequently, A instituted got a divorce having discovered that S is maintaining polygamous marriages to two more women in Singapore and Australia. The Hongkong Court however, awarded the custody of their two minor children to S, one is 3yrs old and the other is 9mos old. In lieu thereof, A ran away to her country with her two offsprings for refuge. Here comes, S invoking the Hongkong Tribunal Judgment for enforcement against A before our RTC? Questions : I . Does our court have jurisdiction a) over the case filed by S which is enforcement of foreign judgment? b) over the person of both A and S. II . Can the court refuse to hear the case once jurisdiction is lodged into it.? III . Can the foreign judgment be enforced on account of vested right doctrine? III . Must be in itself legal and allowed / not barred in the country where such foreign judgment was made. Answers: I. a) Yes, The jurisdiction is acquired by our court upon filling of S of his petition in the proper court. However, assumption of jurisdiction is discretionary since it involves a foreign elements, in the person of S and the foreign judgment is sought to be enforced in our forum. Foreign judgment is territorial in nature. It can only be allowed if the court chooses to acquire jurisdiction over it and sufficient proof must be presented to have it admitted as defense res adjudicata. b) Yes, RTC acquires jurisdiction on both parties' persons, to S - by seeking redress in our tribunal and to A- if due service of summon is made to her. II . Yes. Hearing of cases involving a foreign element commence application of conflict rules as incorporated in our own law. These are left to the discretion of our courts if they deem it wise and necessary to serve the end of justice. III . No. Vested right doctrine is enforceable merely if it won't contradict in the sound public policy and laws of our forum. In the presence of this obvious conflict, doMestic law should be applied which is found under the proviso of the Civil Code, biological mothers are preferred to exercise custody on the minor children who are below 7yrs of age regardless of who is the guilty party unless she is equivocally disqualified by the court based on the rqts of the law. In this case, S is the one guilty of polygamous marriages which polygamous act as subject of the foriegn judgment, is not merely contrary to the norms of morality but is an act mala prohibita which makes S not capacitated, in the eyes of our law, to raise innocent angels. ( rqt nos 4 ) IV . What if the said judgment to be enforced against A is penal in character such as theft?

Ans. Foriegn judgments penal in character can not be recognized nor be enforced in our forum, aside from the fact that our courts may choose not to assume jurisdiction over it. However, if extradition agreement exists bet Hongkong and Phil, the foreign judgment maybe enforced by the executive being political in character which should be raised not by S but by the Hongkong government . V . What if, before final judgment is rendered, A ran away to our country? S seek recourse before our tribunal alleging that soon judgment of divorce and custody shall be given as supported by the certification issued by the Hongkong tribunal that it is on its way to being finalized, lacking merely of the signature of Chief Justice, can it hold water in our court? ans. No. It is necessary that Foreign judgment is a res judicata before it can seek recognition before our courts. STEPS IN CHARACTERIZATION OF FOREIGN LAWS 1. Determination of facts involve ( ascertaining if foreign elements exist ) 2. Factual analysis/ characterization of facts (assign facts into their particular category ) 3. Determination of conflict rules to be applied ( uncovering which laws has the precise connections with the existing facts ) 4. Characterization of point of contact/connecting factor - general rule : the forum determines the point of contact Exceptions : a)it is real or personal property that is the point of controversy b) forum is merely accidental place 5. characterization of problem whether substantial or procedural( use of borrowing statute * directs courts to apply the foreign statute of limitations to the pending claims based on foreign laws )) - get the proper foreign law applicable - apply it in totality inc period of prescriptions and statutes of fraud 6. Pleading and proving of the foreign law. ( internal law shall be used ) - technicalities required by law should be complied ( proving and offering it formally) 7. Application Theories of Characterization @ LEX FORI - Application of the law of the forum in characterization @ LEX CAUSAE - application of the rules in the principal point of contact @ UNIVERSAL ANALYTICAL = "comparative approach " - both the lex fori and lex causae are taken into consideration to arrive at the most justifiable decision @ DUAL THEORY of Lex FORI and Lex CAUSAE - actually applied or used in the determination of the case at hand @ AUTONOMOUS THEORY - application of the third lex cause on reference to the foreign rule that should govern the party Illustration : conflict Case > foreign law of lex CAUSAE > 3rd country law

@ TOTALITY THEORY - get the law of both parties in the controversy then apply the characterization of said law Question: What if the sanctioned foreign law is barred (cause of action itself remedied by the f. Judgment) in the place where it arose but is however cognizable in our law, should it still be applied? Ans. If the action is barred itself in the country where it was created by the effects of said country's law, the Phil Courts are prohibited to acquire jurisdiction thereof even if it is legal and cognizable in our forum. Illustrative case: A, Filipino, married X, a Japanese in a luxury ship licensed by virtue of Canada Law. In Canada, marriage license is dispensable. The marriage of the couple therefore is one without the sanctioned marriage license in our forum. Should X happened to discover that A is unfit to perform the obligation of the marriage vows, which law should apply if she wishes to annul their marriage Before our court? Discussion : On the stand point of A, under Art 15 of the CCP, status and family relations shall be governed by the law of the Phil even though it's citizens are living abroad. Due to the lack of the essential requisites of marriage license, their marriage is void ab initio in the lex FORI . X may file a petition for declaration of nullify of marriage before our court. What if the Canada law holds the contracting party still tied by marriage even nullified by the law of the country of one party unless divorce is properly sought in its jurisdiction? Ans. Should X raised the matter in the country of lex CAUSAE, Canada court may choose to enforce the decision of the Philippine tribunal in the determination of A and X divorce proceeding in harmony with their own laws. This comparative approach. What if the lex CAUSAE requires that divorce by foreigners who were afforded the validity of marriage bond in its jurisdiction must be filed before the US court to attain undiscriminated resolution? Ans. This calls for autonomous theory application. STATUS defined Pertains to the place of an individual to his society consisting of relationship and qualities permanent in nature with which the state and the community are concerned. It is determined by the person's national law, permanent in nature which can't be revoked by his will alone, a matter of public right and social order and is universal in character Who are the citizens of the Philippines? 1. Natural- born are those born to be Filipino citizens by Filipino mother or father who didn't perform any act rquired by law to perfect their citizenship. 2. Naturalized Are those judicially declared Filipino citizens in compliance to rules of naturalization , and who possess all qualifications provided thereof and no warrant of any of the disqualifications.

3. Citizens by Election Are those born to have dual citizenship, not voluntarily obtained, but imposed to them in lieu of the incidents in attendant to their birth or blood relations, who upon reaching the age of 21, within a reasonable time, elected Philippine citizenship. > Under the 1987 Constitution ( art IV ) The ff are the citizens of the Phil a) those who are Filipino citizens at the time of the adoption of the constitution b) those whose mothers and fathers are citizens of the Phil c) those born before january 17, 1973 of filipino mothers, who elect Philippine citizenship upon reaching the age of majority d) those who are naturalized In accordance with the law Naturalization defined: an act of acquiring citizenship by another country through a proper judicial process, meeting all qualifications and requisites provided by law without the presence of any of the disqualifications. Attributes : a mere privilege which only the state can give, withhold or deny. Qualifications ( mandatory, exclusive/personal ) 1. Age - at least 21 yrs at the date of the hearing of the petition Note : declaration of intention should be filed 1 yr prior to the formal filing of the petition at the office of the solicitor general except in these instances: persons born in the Phil who received both primary and secondary education in Philippine school, 30yrs residents, widow and minor children whose alien husband died but was able to file declaration of intention. Illustration : If X is 21 yrs old at the time the hearing of his petition commences, how old was he at the time he filed his intention for naturalization? Ans Bet 19 to 20 yrs old. 1 yr requirement must be mandatorily observed before petition for naturalization be filed in court. Taking into consideration the inherent time element of court processing, S was necessarily between the age 19 - 20 then, if at the time of the hearing he is already 21 yrs old. 2. Residency a) ordinary alien. - 10 yrs of continuous , substantial and physical residence b) alien married to a Filipina - 5 yrs c) other aliens qualified for 5yrs reduction I. Applicant is holding an honorable office in the govt II. Established new industry, useful trade or introduced new invention III. Two years of service as a teacher in recognized Philippine School IV. He was actually born in the Philippines 3. Good morals and conduct ( irreproachable ), and belief in the Philippine Const. 4. Solvency ( property ownership either of real property or cash in the amount of php 5,000) or a useful trade or lawful occupation 5. Command in language ( able to speak either, both or all - Filipino, Spanish and English ) 6. Enrolment of minor children in a school recognized by DepEd. Araling Panlipunan, civics and filipino culture is prescribed in the curriculum 7. Two Filipino as credible witnesses to his character

DISQUALIFICATIONS 1. Persons in opposition of organized government 2. Persons defending or teaching propriety of violence, personal assault or assassination in furtherance of their ideals 3. Polygamist or believer thereof 4. Suffering in mental alienation or Incurable contagious diseases 5. Conviction of a crime involving moral turpitude 6. Lack of Social interaction and desire to embrace Filipino customs and culture 7. Individuals whose country of origin is at war with the US or Phil 8. Reciprocity in the country of origin is not accorded to Filipinos on same subj. Gen rule No res judicata application in citizenship issues. Exception: burca doctrine Res judicata may apply provided the ff are present A) citizenship of person concerned must be raised as the material issue in a litigation to which he is one of the parties thereto B) solicitor general or his authorized rep took active participation thereto C) the court issued the resolution resorted thereof DOMICILE (permanent place of abode in which when one is absent, he has the intention to return ) 1. Domicile of Origin - acquired by virtue of birth 2. Constructive Domicile - civil incapacitated persons follow the domicile of their guardian, parents - legal incapacitatedf persons i.e. married woman follows the domicile of husband, prisoner retains his domicile before conviction 3. Domicile of choice - a domicile chosen willfully and voluntarily by a person. Actual residence and acts manifest the decision of choosing said domicile Citizenship, Nationality, domicile distinguished: Citizenship pertains to membership in a political unit. Nationality speaks more of loyalty as an obligation of membership to a certain political unit. Domicile speaks of the choice where to live permanently , be member of one community and be governed of rules existing therein and when absent, he obviously intends to return