Conflict of Laws Chapter 1 In General Conflict of Laws 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 Conflict of laws case Any case which involves facts occurring in more than one state or nation, so that in deciding the case, it is necessary to make a choice between the laws of different states or countries Note: Conflict of laws is NOT part of international law. Although it is sometimes thought of as part of international law because of the presence of a foreign element in a given problem, it is not international law in character but is part of the municipal law of each state. By municipal law in Conflict of Laws is meant the internal or local law of each state. Conflict of laws vs. public international law Public Conflict of laws International Law As to persons Governs Governs private involved sovereign states individuals or and entities that corporations are internationally recognized or possessed of international personality As to nature International in Municipal in character character As to Applies only to Deals with transactions transactions in transactions involved which only strictly private in sovereign states nature in which or entities with the country as international such has personality are generally no concerned and interest which generally affect public interest As to remedies The concerned Recourse is had applied states may first to judicial or resort to peaceful administrative remedies. If these tribunals in remedies fail, the accordance with states concerned the rules of may resort to procedure of the forcible remedies country where they sit Sources of Conflict of Laws 1. Direct sources Treaties International conventions Constitutions Codifications and statutes Judicial decisions International customs 2. Indirect sources Natural moral law

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Chapter 2 Jurisdiction and choice of law How one deals with a problem in Conflict of Laws 1. First, determine whether the court has jurisdiction over the case. If it has no jurisdiction, the case should be dismissed If it has jurisdiction, the court will determine whether it should assume jurisdiction over the case or dismiss it on the ground of forum non conveniens It is the law of the forum that determines whether the court has jurisdiction over the case 2. It will next determine whether to apply the internal law of the forum or the proper foreign law Three kinds of jurisdiction 1. Jurisdiction over the subject matter 2. Jurisdiction over the person 3. Jurisdiction over the res Jurisdiction over the subject matter Conferred by law Defined as the power to hear and determine cases of the general class to which the proceedings in question belong Cannot be conferred by consent of the parties or by their voluntary submission Must be invoked by filing the proper complaint or petition with the court. Note: In the realm of Conflict of Laws, however, there is another element which the court must consider in determining the matter of jurisdiction the possible enforceability of its decision in foreign states, subject to the rights of said states. Jurisdiction over the person The competence or power of a court to render a judgment that will bind the parties involved Jurisdiction over the plaintiff: Acquired the moment he invokes the power of the court by instituting the action by the proper pleading Jurisdiction over the defendant: Acquired when he enters his appearance or by the coercive power of legal process exerted by the court over him personal or substituted service of summons o EX: If appearance is for the sole purpose of questioning the jurisdiction of the court. Note: Question of erroneous service of summons must be raised before judgment is rendered, or this would be a case of waiver. Defective service may be cured by actual receipt of summons or if in any other manner, knowledge of the existence of the case Jurisdiction over the Res Jurisdiction over the particular subject matter in controversy, regardless of the persons who may be interested therein The basis of the exercise of this jurisdiction is the presence of the property within the territorial jurisdiction of the forum even though the court may not have personal jurisdiction over the Page 1 of 22

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Conflict of Laws persons whose interests in the property are affected The purpose of the suit is not to impose a persona liability on anyone but it is to affect the interests of all persons in a thing. Jurisdiction over the res Binds the whole world

Comprehensive reviewer of Sempio-Diy book Instances when court may refuse to exercise jurisdiction over a case on the basis of forum non conveniens 1. The evidence and the witnesses may not be readily available in the forum 2. The court dockets of the forum may already be clogged so that to permit additional cases would hamper the speedy administration of justice 3. The belief that the matter can be better tried and decided in another jurisdiction, either because the main aspects of the case transpired there or the material witnesses have their residence there 4. To curb the evils of forum shopping the nonresident plaintiff might have filed the case in the forum merely to secure procedural advantages or to annoy or harass the defendant 5. The forum has no particular interest in the case the parties not being citizens of the forum or are residents elsewhere, or the subject matter of the case evolved somewhere else 6. Other courts are open and the case may be better tried in said courts 7. The inadequacy of the local judicial machinery for effectuating the right sought to be enforced by the plaintiff 8. The difficulty of ascertaining the foreign law applicable Note: The doctrine should generally apply only if the defendant is a corporation. For if the defendant is an individual, the proper forum may not be able to acquire jurisdiction over him, thus leaving the plaintiff without any remedy. Three instances when the forum has to apply the internal or domestic law (lex fori) in deciding a case in conflicts of law 1. When the law of the forum expressly so provides in its conflicts rules 2. When the proper foreign law has not been properly pleaded and proved 3. When the case involves any of the exceptions to the application of the proper foreign law (i.e. exceptions to comity) Why foreign law cannot be applied if it has not been pleaded and proved Our courts cannot take judicial notice of foreign laws How a foreign law is proved under our Rules of Court 1. Written law (1) An official publication thereof (2) A copy of the law attested by the officer having legal custody of the record or by his deputy, accompanied by a certificate of any Philippine embassy, consular, or foreign service officer in the foreign country where the record is kept, and authenticated by the seal of his office 2. Unwritten law (1) The oral testimony of expert witnesses (2) By printed and published books of reports of decisions of the country involved if proved to be commonly admitted in its courts Processual presumption of law This rule means that when the proper foreign law has not been properly proved, the court of the forum may presume Page 2 of 22

Jurisdiction in personam Binds only the parties and their successors in interest

Actions quasi in rem The purpose is neither to impose a personal liability in a thing nor to affect the interests of all persons in a thing, but to affect the interests of particular persons in a thing. An action affecting the personal status of the plaintiff is also classified as an action quasi in rem Service of summons, how effected 1. In actions in personam (1) Personal service (2) Substituted service Note: Service by publication would NOT be sufficient 2. Service by publication (1) Action in rem (2) Action quasi in rem (3) Action involves the personal status of plaintiff Extraterritorial service of summons (1) When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff (2) 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 a claim, a lien or interest, actual or contingent (3) When the defendant is a non-resident but the subject of the action is property located in the Philippines in which the relief demanded consists in excluding the defendant from any interest therein (4) When the property of a non-resident defendant has been attached in the Philippines While a writ of attachment may be issued by the court, said writ cannot be implemented until the court has acquired jurisdiction over the nonresident defendant

3.

Extraterritorial service, how effected By leave of court: 1. By personal service 2. By publication, but copy of the summons and the order of the court must be sent by registered mail to the defendants last known address 3. In any other manner that the court may deem sufficient, e.g., by registered mail

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Conflict of Laws that said foreign law is the same as its local or domestic law, which it can now apply Exceptions to the applications of a foreign law 1. When the application of the foreign law would run counter to a sound and established public policy of the forum 2. When the foreign law is contrary to the almost universally conceded principles of morality (contra bonos mores) 3. When the foreign law involves procedural matters EX: When the law is both procedural and substantive 4. When the foreign law is penal in character EX: A penal clause in a contract may however be enforced here because such clause is not criminal in nature but provides only for liquidated damages 5. When the law is purely fiscal (i.e., revenue producing) or administrative in nature 6. When the foreign law might work undeniable injustice to the citizens or residents of the forum 7. When the application of the foreign law would endanger the vital interests of the State 8. When the case involves real or personal property located in our country Chapter 3 Theories that justify the application of the foreign law Theories that justify the application of the foreign law instead of domestic or internal law 1. Theory of comity 2. Vested right theory 3. Theory of local law 4. Theory of harmony of laws 5. Theory of justice Theory of comity According to this theory, no foreign law would be allowed to operate in another state except by the comity of nations Comity The recognition which one state allows within its territory, to the legislative, executive, or judicial acts of another nation Two principles upon which the theory of comity rests 1. The comity based on reciprocity 2. The comity based on the persuasiveness of a foreign judgment Our Civil Procedure still follows the principle of reciprocity because in Sec. 48, Rule 39, a foreign final judgment or order is presumptive evidence of a right as between the parties and their successors in interest The vested-rights theory Under this theory, our courts enforce not the foreign law or foreign judgment but the right or rights that have been vested under such law or judgment. Rights once acquired should be enforced regardless of where the suit for its enforcement was filed.

Comprehensive reviewer of Sempio-Diy book Theory of local law Under this theory, we apply a 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. Theory of harmony of laws Under this theory, identical or similar problems should be given identical or similar solutions thus resulting in harmony of laws Theory of justice Since the purpose of all laws, including Conflict of Laws, is the dispensation of justice, the proper foreign law should be applied in order to attain this objective The defect of this theory, however, is that different persons may have different ideas of what is just Note: No single theory contains the whole truth; no one approach is completely valid. All of the theories have validity. This suggests that they are not entirely exclusive. Chapter 4 Nature and composition of conflicts rules Purely internal provision of law vs. conflicts rule Purely internal provision Conflicts rule/ A of law provision in conflict of laws Governs a domestic A provision found in our own problem, i.e., one without a law which governs a factual foreign element situation possessed of a foreign element Example: Art. 796 All Example: Art. 16 Real persons who are not property as well as personal expressly prohibited by law property is subject to the may make a will law of the country where it is situated Two kinds of conflicts rules 1. One-sided rule Indicates when Philippine law will apply Example: Article 15 of the CC 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 2. All-sided or multilateral rule Indicates whether to apply the local law or the proper foreign law Example: Art. 16 Real property as well as personal property is subject to the law of the country where it is situated Parts of every conflicts rule 1. The factual situation the set of facts or situation presenting a conflicts problem because there is a foreign element involved 2. The point of contact or connecting factor The law of the country with which the factual situation is most intimately connected Note: The first part raises while the second part answers a legal question

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Conflict of Laws

Comprehensive reviewer of Sempio-Diy book Different theories on how the personal law of an individual is determined 1. The nationality theory Personal theory The status and capacity of a person are determined by the law of his nationality or his national law 2. The domiciliary theory By virtue of which the status and capacity of a person is determined by the law of his domicile Territorial theory 3. The situs or eclectic theory Views the law of a particular place or situs of an event or transaction as generally the controlling law Note: The Philippines follows the nationality theory. Nationality v. citizenship Nationality Refers to membership in a political community, one that is personal and more or less permanent, not temporary. In the field of Conflict of Laws, are the same Citizenship A citizen is one who owes allegiance to and is entitled to the protection of the State nationality and citizenship

Chapter 5 Characterization of conflict rules Characterization Otherwise known as classification or qualification is the process of assigning a certain set of facts or factual situation to its proper or correct legal category. By characterizing the legal problem, the court of the parties involved reach the proper solution whether to apply the local law or the proper foreign law Most writers hold that on the grounds of practical necessity and convenience, it is the forum or the lex fori that should determine the problems characterization unless the result would be a clear injustice Note: Modern trend is to consider prescriptive periods or Statute of Frauds that the parties had in mind at the time the transaction took place

Chapter 6 Persona law Theories in determining ones personal law Personal law. That which attaches to him wherever he may go. The law that generally governs his status, capacity, condition, family relations, and the consequences of his actuations. It may be: 1. National law 2. Law of his domicile 3. Law of the situs Status vs. capacity Status Place of an individual in society and consists of personal qualities and relationships more or less permanent, with which the state and the community are concerned Capacity Only part of ones status and may be defined as the sum total of his rights and obligations

Chapter 7 The Nationality Theory Different kinds of citizenship in the Philippines 1. Natural born citizens Those who are citizens from birth without having to perform any act to acquire or perfect their Philippine citizenship Native-born Filipinos Those born in the Philippines. Natural-born citizens may not be native-born if they were born abroad 2. Citizens by naturalization Those who were formerly aliens but by judicial, legislative, or administrative process, have become Filipino citizens Jus sanguinis It is citizenship by blood This is the rule that we follow in the Philippines

Two kinds of capacity 1. Juridical capacity Passive capacity The fitness to be the subject of legal relations 2. Capacity to act Active capacity The power to do acts with legal effects Characteristics of status 1. It is conferred principally by the State, not by the individual 2. It is a matter of public interest or social interest 3. Being a concept of social order, it cannot easily be terminated at the mere will or desire of the parties concerned 4. It is generally supposed to have a universal character

Jus soli v. jus sanguinis Jus soli A person is a citizen of the country where he was born or of the country of his birth

Note: Each country or state has the sole power and authority to determine under its internal or municipal law who are its citizens or nationals Dual allegiance under Sec. 5, Article IV of the Constitution The provision in the Constitution (dual allegiance of citizens is inimical to national interest and shall be dealt with by law) is concerned not with dual citizenship per se but with naturalized citizens of the Philippines who still maintain their allegiance to the countries of their origin. Page 4 of 22

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Conflict of Laws Effective nationality theory Within a third state, a person having more than one nationality 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 nationalities 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 circumstances he appears to be in fact mostly connected The law of the country of which the deceased was both a citizen and a domiciliary at the time of her death is considered more effectively connected to her than her other national law. Citizens of the Philippines under the 1987 Constitution 1. Those who are citizens of the Philippines at the time of the adoption of this Constitution 2. Those whose fathers or mothers are citizens of the Philippines 3. Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship upon reaching the age of majority and 4. Those who are naturalized in accordance with law Citizenship of a Filipino woman who marries a foreigner 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 (Article 4, Sec. 4, 1987 Constitution) Citizenship of an alien woman who marries a Filipino husband Under Sec. 15 of the Revised Naturalization Law (Com. Act No. 475), 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 the same law. It is enough that an alien wife proves that she is not disqualified to be a Filipino citizen not

Comprehensive reviewer of Sempio-Diy book necessarily in court but even before an agency like the Immigration Commission Note: An alien woman married to an alien husband who (the husband) is subsequently naturalized also follows the Philippine citizenship of her husband, provided she does not suffer from any of the disqualifications under Sec. 4 of the same Revised Naturalization Law. This is a case of derivative naturalization (similar to the minor children of a naturalized Filipino citizen) Naturalization The process of conferring on an alien the citizenship of another country by any of the means provided by law. Modes of acquiring Philippine citizenship by naturalization 1. Judicial process Com. Act No. 475 as amended by RA 530 2. Legislative process When Philippine citizenship is conferred by a special act of Congress on deserving aliens 3. Administrative process RA 9139 or the Administrative Naturalization Law of 2000 Under this law, a Special Committee on Naturalization is created, with the power to approve, deny, or reject applications for naturalization filed with said Committee Derivative naturalization Philippine citizenship conferred on: 1. The wife of a naturalized husband 2. The minor children of a naturalized father 3. The alien wife of a natural born or naturalized citizen, in the latter case, the marriage having taken place after the husbands naturalization

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Conflict of Laws Naturalization Judicial naturalization under Com. Act. 475, as amended 1. The petitioner must not e less than 21 years of age on the date of the hearing of the petition 2. He must have, as a rule, resided in the Philippines for a continuous period of not less than 10 years 3. He must be of good moral character, and believe 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 4. He must own real estate in the Philippines worth not less than 5,000, Philippine currency, or must have some lucrative trade, profession, or occupation 5. He must be able to speak and write English or Spanish and any one of the principal languages and 6. He must have enrolled his minor children of school in any of the public or private schools recognized by the Bureau of Private Schools where Philippine history, government, and civics are taught or prescribed as part of the school curriculum during the entire period of the residence required of him, prior to the hearing of his petition for naturalization as citizen

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Qualifications

Disqualifications

1. 2. 3. 4. 5. 6. 7. 8.

Administrative naturalization under RA 9139 or the Administrative Naturalization Law of 2000 1. The applicant must be born in the Philippines and residing therein since birth 2. The applicant must not be less than 18 years of age, at the time of filing of his/her petition 3. 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 relation with the duly constituted government as well as with the community in which he/she is living 4. The applicant must have received his/her primary and secondary education in any public school or private education institution duly recognized by the DECS, 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. 5. 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 6. The applicant must be able to read, write, and speak Filipino or any of the dialects of the Philippines, and 7. 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 Those opposed to organized government or affiliated with any association of group of person who uphold and teach doctrines opposing all organized governments Those defending or teaching the necessity of or propriety of violence, personal assault or assassination for the success or predominance of their ideas Polygamists or believers in the practice of polygamy Those convicted of crimes involving moral turpitude Those suffering from mental alienation or incurable contagious disease 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 Citizens or subjects of nations with whom the Philippines is at war Citizens or subjects of a foreign country whose laws do not grant Filipinos the right to be naturalized citizens or subjects thereof

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Conflict of Laws Loss of citizenship Under Com. Act 63, as amended, a Filipino citizen may lose his citizenship in any of the following ways: 1. By naturalization in a foreign country 2. By express renunciation of citizenship 3. By subscribing an oath of allegiance to support the constitution or laws of a foreign country upon attaining twenty-one years of age or more 4. By accepting commission in the military, naval, or air service of a foreign country 5. By cancellation of the certificate of naturalization 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 case of a woman, upon her marriage to a foreigner, if, by virtue of the laws in force in her husbands country, she acquires his nationality Under the 1987 Constitution, however, the woman retains her Philippine citizenship unless by her act or omission she is deemed under the law to have renounced her Philippine citizenship Philippine citizenship, how reacquired Under C.A. 63, as amended, Philippine citizenship may be reacquired as follows: 1. By naturalization, provided the applicant possesses none of the disqualifications 2. By repatriation of deserters of the Army, Navy, or Air Corps, 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 3. By direct act of Congress RA 9225 Citizenship Retention and Reacquisition Act of 2003 Under this law, natural born Filipino citizens who had been naturalized in foreign countries are deemed to have reacquired Philippine citizenship by taking an oath of allegiance to the Philippine Constitution and laws. Those who become naturalized in foreign countries after the effectivity of the Act retain their Philippine citizenship upon taking the same oath Chapter 8 Domiciliary Theory Domiciliary theory It is the theory whereby the status, condition, family rights and obligations, and capacity of a person are governed by the law of his domicile or the lex domicilii Domicile It is the place where a person has his true, fixed, permanent home, and principal establishment, and to which, whenever he is absent, he has the intention of returning. Art. 50 of the CC: For the exercise of civil rights and fulfillment of civil obligations, the domicile of natural persons is the place of their habitual residence

Comprehensive reviewer of Sempio-Diy book Domicile v. residence Domicile Residence Denotes a fixed, permanent Used to indicate a place of residence to which, when abode, whether permanent absent, one has the or temporary intention of returning Residence is not domicile, but domicile is residence coupled with intention to remain for an unlimited time Domicile v. citizenship Domicile Citizenship Speaks of ones permanent Indicates ties of allegiance place of abode and loyalty A person may be a citizen or national of one sate and a domiciliary of another Note: The forum applies its own concept of domicile in determining the domicile of a litigant before its courts (law of the forum/lex fori, NOT national law, is the law that determines ones domicile) Different kinds of domicile 1. Domicile of origin: The domicile assigned by law to a person at the moment of his birth 2. Constructive domicile or domicile by operation of law: The domicile assigned by law to a person after birth on account of a legal disability, like minority, insanity, imprisonment, etc. 3. Domicile of choice: The domicile of a person sui juris because he has his home there and to which, whenever absent, he intends to return Principles regarding ones domicile of choice 1. No person can ever be without a domicile or every natural person must have a domicile 2. A person cannot have two simultaneous domiciles 3. A natural person, free (not a prisoner) and sui juris (one of age and under no disability), can change his domicile at pleasure 4. A domicile, once acquired, is retained until a new one is gained 5. The presumption being in favor of the continuance of an existing domicile, the burden of proof is on the one who alleges that a change of domicile has taken place 6. To acquire a new domicile of choice, the following must concur: (1) Residence or bodily presence in the new locality (2) An intention to remain there (animus manendi) and (3) An intention not to return to the former abode (animus non revertendi) Rules determining ones domicile of origin If the child is legitimate His domicile of origin is that of his parents at the time of his birth If parents are separated, the domicile of the custodial parent His domicile of origin is that of the mother at the time of his birth The domicile of his father at the time of his birth controls The domicile of origin is the domicile of his real parents Page 7 of 22

If the child is illegitimate If the child is legitimated If the child is adopted

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Conflict of Laws at the time of his birth, NOT the domicile of the adopters The domicile of origin is the country where it was found

Comprehensive reviewer of Sempio-Diy book

If a foundling

Chapter 9 The situs or eclectic theory Situs or eclectic theory The capacity, status, and family relations of a person are governed not necessarily by the law of his nationality or the law of his domicile but by the law of the place (situs) where an important element of the problem occurs or is situated Two kinds of participation of an individual under the situs or eclectic theory 1. If participation is active When he does an act voluntarily, the governing law is the law of the actual situs of the transaction or event 2. If the participation is passive When the effects of the act are set forth or determined by law, the governing law is the law of the legal situs, i.e., the domicile of the individual concerned Chapter 10 The problem of the renvoi Renvoi A French word which means refer back or return In Anglo-American countries, the term used is remission, which means to refer a matter for consideration or judgment When does the problem of renvoi arise? The problem of renvoi arises when there is doubt as to whether the reference by the lex fori (the law of the country where the problem arises) to the foreign law involves: 1. A reference to the internal law of the foreign law or 2. A reference to the entirety of the foreign law including its conflicts rules In such case, if the first state follows the nationality theory, and the second state follows the domiciliary theory, the problem of renvoi will most probably arise Four solutions the court can adopt when confronted with a renvoi problem 1. Reject the renvoi This means that the court does not want the problem to be sent back to us. As in the case of the testate or intestate succession of a foreigner but domiciled in our country, we would simply apply his national law or the internal law of his country 2. Accept the renvoi Accept the referral or transmission of the case back to us, so that instead of applying the foreign internal law, Philippine law is applied Single renvoi or single transmission 3. Follow the theory of desistment or the mutual disclaimer of jurisdiction theory Refrain from applying the national law of the deceased foreigner, although our law tells us to do so. If said law follows the domiciliary theory and directs that we apply the law of the domicile of the deceased, so in the end, we still apply Philippine law

Rules determining ones constructive domicile MINORS 1. If legitimate, the domicile of both parents In case of disagreement, that of the father, unless there is a judicial order to the contrary 2. If illegitimate, the domicile of the mother 3. In case of absence or death of either parent, the domicile of the present parent. Even in case of remarriage of the surviving parent, still his/her domicile determines the constructive domicile of the minor child 4. If the child is adopted, the domicile of choice of the adopter is the childs constructive domicile INSANES, IDIOTS, IMBECILES The law assigns their domicile to them: 1. If they are below the age of majority, the rules on minors apply to them 2. If they are of age and have guardians, they follow the domicile of choice of their guardians 3. If they are of age and have no guardians, their constructive domicile is their domicile of choice before they became insane MARRIED WOMEN 1. The constructive domicile of the wife is the domicile of both spouses, unless the law allows the wife to have a separate domicile for valid and compelling If the marriage is valid reasons 2. If there is legal separation between the spouses, the wife can have her own domicile of choice 3. If there is a separation de facto, the wife can also have a separate domicile Apply the same rules when If the marriage is the marriage is valid. voidable However, 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 OTHER PERSONS Convict or prisoner His domicile is the one he had possessed prior to his incarceration Soldiers Their domicile is their domicile before their enlistment Public officials or Their domicile is the one employees abroad they had before they were (diplomats, etc) assigned elsewhere, unless they voluntarily adopt their place of employment as their permanent residence

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Conflict of Laws 4. Apply the foreign court theory We would simply do what the foreign court would do if confronted with the same case Advantage of this theory is that regardless of the forum, the applicable law will be the same Can also result in international ping pong

Comprehensive reviewer of Sempio-Diy book of his domicile) by a court of competent jurisdiction is considered valid for all purposes Absence, defined A special legal status pertaining to a person who has disappeared from his domicile, his whereabouts being unknown, without leaving an agent to administer his property or even if he had left an agent, the power conferred by the absentee on the agent has expired One status of being absent is determined in accordance with his personal law Our own courts also have jurisdiction to declare an alien domiciliary in the Philippines as absent Judicial declaration of absence under Philippine law After the lapse of two years without any news about the absentee or since the receipt of the last news, and five years if the absentee has left an administrator of his property, his absence may be declared Instances when an absentee may be presumed dead and for what purposes 1. For purposes of remarriage the absentee may be presumed dead after four years of absence, the present spouses having a well-founded belief that the absentee is already dead However, in case of disappearance where there is danger of death, an absence of 2 years is enough 2. For all other purposes EXCEPT succession an absence of seven years, it being unknown whether or not the absentee still lives 3. For the purpose of succession an absence of 10 years is required, except if the absentee disappeared after the age of 75 years, in which case an absence of 5 years is enough to open his succession What determines the age of majority in Conflict of Laws? It is the personal law of the person that determines whether he has reached the age of majority or not. Our conflicts rules on capacity to contract A persons capacity to contract is governed by his personal law, whether it is the lex nationalii or the lex domicilii EX: Contracts involving real or personal property in which cases the lex situs or lex rei sitae applies including the capacity of the contracting parties Note: It is suggested that Article 15 of the CC applying the nationality theory be limited to strictly family and domestic transactions, while the law governing the contract should govern ordinary day-to-day business contracts. Change of names and surnames A change of name is a special proceeding to establish the status of a person involving his relation with others. Aliens can ask for change of name in the Philippines, provided they are domiciled here. But an alien whose citizenship is either controverted or doubtful cannot ask for a change of name Legislative jurisdiction vs. judicial jurisdiction over ones status Legislative jurisdiction Judicial jurisdiction Legislative jurisdiction over Judicial jurisdiction over ones status is the power of ones status is the power of Page 9 of 22

Double renvoi This occurs when the local court, in adopting the foreign court theory, discovers that the foreign court accepts the renvoi. But since the foreign law remits the case to Philippine law, being the law of the deceaseds domicile, the foreign court may discover that Philippine law does not accept the remission (as it applies the national law of the deceased) so the foreign court, sitting as a Philippine court, would still apply its own internal law. This is then what our court will apply. Theory of transmission v. renvoi Theory of transmission Renvoi Transmission is the process Renvoi means to refer a of applying the law of a matter for consideration or foreign state thru the law of judgment a second foreign state Transmission involves three Renvoi involves two laws laws Chapter 11 Conflict rules on status and capacity When human personality begins under our law Art. 40, NCC: Birth determines personality, but the conceived child shall be considered born for all purposes that are favorable to it, provided it be born later with the conditions specified in the following article Art. 41, NCC: For civil purposes, the fetus is considered born if it is alive at the time it is completely delivered from the mothers womb. However, if the fetus had an intra-uterine life of less than 7 months, it is not deemed born if it dies within 24 hours after its complete delivery from the maternal womb Personality really begins at conception, subject to the following conditions: 1. The purpose is favorable to the fetus 2. If it is born alive under Art. 41 of the NCC Two kinds of children 1. Ordinary With an intra uterine life of at least 7 months 2. Extraordinary With an intra-uterine life of less than 7 months, in which case it must live for at least 24 hours after complete delivery from the mothers womb Note: In Conflict of Laws, personal law determines the beginning of ones personality. Civil personality, when extinguished Art. 42 of the NCC: Civil personality is extinguished by death Refers to physical death not civil death A declaration of death in accordance with ones personal law (whether his national law or the law

Lesley Claudio (A 2012)

Conflict of Laws his personal law to govern his status wherever he goes the courts to decide questions or controversies concerning ones status

Comprehensive reviewer of Sempio-Diy book EX: A foreign marriage of Filipinos in a foreign country will still be void in the Philippines if: 1. Either or both parties did not have legal capacity to get married (Art. 35 (1)) 2. The marriage is immoral for being bigamous or polygamous (Art. 35 (4)) 3. Consent of one party is lacking, because of mistake as to the identity of the other (Art. 35 (5)) 4. One of the parties was psychologically incapacitated at the time of the marriage to comply with the essential marital obligations (Art. 36) 5. The marriage is incestuous (Art. 37) 6. The marriage is void by reason of public policy (Art. 38) Note: Consular marriages of Filipinos abroad are valid (Art. 10, Family Code) Conflicts rules on marriages between foreigners solemnized abroad 1. We still apply the rule of lex loci celebrationis, but not the exceptions in the first par. of Art. 26 of the Family Code which apply only to Filipinos But universally considered incestuous marriages and marriages that are highly immoral are excepted 2. Proxy marriages Not allowed under Philippine internal law Rule in the US if permitted by the law of the place where the proxy participates in the marriage ceremony, proxy marriages are entitled to recognition insofar as the formal validity of the marriage is concerned 3. Marriages on board a vessel on the high seas Since the country whose flag the ship is flying has jurisdiction over the ship, the rule is that compliance with the law of the said country is required for the marriage to be valid 4. If the parties or at least the husband is a Muslim it is believed that we would recognize up to four marriages of the same husband (Philippine Muslim Code on Personal Laws) Mixed Marriages Marriage between a Filipino and foreigner ABROAD If the marriage is valid under the law of one of the spouses while void under the law of the other, we should uphold the validity of the marriage, unless the marriage is universally incestuous or highly immoral (the same rule as to foreigners who get married abroad) The national law of the Filipino Philippine law should be followed otherwise our public policy would be violated

Note: Thus, our courts can decide cases involving the status and capacity of foreigners brought before them, but in doing so, our courts will apply the personal law of the foreigner, whether it be his national law or the law of his domicile, depending on what theory the country of his citizenship follows. Example: Even if the personal law of the foreigner allows divorce, he cannot apply for divorce from his spouse before a Philippine court because we do not recognize divorce and our courts have no jurisdiction to grant divorces. However, a foreigner who applies for legal separation in our country on a ground available under his national law but not under our law, may obtain a favorable judgment from our courts, because it is his national law on legal separation that our courts will apply, but subject to our procedural law. Chapter 12 Conflicts rules on marriage Philippine internal law on the formal validity of marriages or the validity of marriage as a contract 1. Essential requisites (1) Legal capacity of the contracting parties who must be male and female (2) Consent freely given in the presence of a solemnizing officer 2. Formal requisites (1) Authority of the solemnizing officer (2) A valid marriage license (3) A marriage ceremony 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 Note: The above formal requisites apply to foreigners who get married in the Philippines. If one or both of the parties are foreigners, the foreigner must submit a certificate of legal capacity to contract marriage issued by the diplomatic or consular officials of his/her country in the Philippines before he/she can be issued a marriage license. Stateless persons or refugees need only to submit an affidavit stating the circumstances showing such capacity to contract marriage Common law marriages of foreigners As to common law marriages of foreigners who come to the Philippines as husband and wife, it would seem that we should consider the marriage valid if valid under their national law or the law of the place where the relationship began. But the marriage must not be contra bonos mores or universally considered incestuous Foreign marriages of Filipinos GR: Under Art. 26 of the Family Code, all marriages 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. In other words, we follow the rule of lex loci celebrationis Lesley Claudio (A 2012)

Marriage between a Filipino and a foreigner in the PHILIPPINES

Two aspects of marriage as a status 1. Aspect of personal rights and obligations of the spouses Purely personal and are not ordinarily interfered with by the courts

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Conflict of Laws 2. Aspect of their property relations The law lays down rules and judicial sanctions as they may affect public interest

Comprehensive reviewer of Sempio-Diy book Conflicts rules on the property relations of husband and wife GR: Property relations of the spouses are governed by Philippine law, regardless of the place of the celebration of marriage and their residence (nationality theory) If one spouse is a Filipino (wife or husband) and the other is an alien, Philippine law would still govern EX: 1. 2. If both spouses are aliens general rule in Conflict of Laws will apply With respect to extrinsic validity of contracts affecting real property the lex situs will govern the formalities to be observed for the contracts validity

Law governing personal relations of spouses in Conflict of Laws 1. Countries that follow the nationality theory (e.g. Philippines) apply the spouses national law in determining their personal relations with each other 2. Countries that follow the domiciliary theory the personal relations of the spouses are governed by the law of their domicile Spouses of different nationalities: law governing their personal relations GR: The personal relations of the spouses are governed by the national law of the husband Alien woman who marries a Filipino husband Ipso facto becomes a Filipino citizen if she does not suffer under any disqualification for naturalization as a Filipino citizen Personal relations: national law of the husband shall govern (GR) Constitution provides that she shall retain her Philippine citizenship, unless by her act or omission, she is deemed, under our law, to have renounced her citizenship Personal relations: Art. 80 of the Family Code provides that the national law of the wife or Philippine law would govern the spouses personal relations (rule was intended to protect the Filipino wife) Conflict rules on the law governing personal relations of spouses who change nationalities General Rules 1. If the spouses have the same nationality but they acquire a new nationality by their common act their new national law will govern their personal relations 2. If the husband alone changes his nationality after the marriage the law of the last common nationality of the spouses would govern 3. If the spouses retain their different nationalities after the marriage National law of both spouses should govern RE: 3 Better solution: apply the national law of the husband at the time of the marriage EXCEPTIONS 1. If the national law of the husband violates public policy of the forum 2. The national law of the wife happens to be the law of the forum

Doctrine of immutability of matrimonial (property) regime of the spouses Regardless of the change of nationality by the husband or the wife or both, the original property regime that prevailed at the start of their marriage prevails Immutability of the property regime v. immutability of the law governing the property regime Immutability of the Immutability of the law property regime governing the property regime A subsequent change of The law that creates and nationality by the husband governs the property regime or wife or both does NOT may change change the original property regime Annulment v. Declaration of nullity of marriage Annulment Declaration of nullity Remedy if the marriage is Remedy if the marriage is voidable or annullable (valid void ab initio until annulled) Voidable v. void marriage Voidable marriage It can be convalidated either by free cohabitation or prescription The same property regime as in a valid marriage is established between the spouses The children are legitimate if conceived before the decree of annulment legal effects Void marriage It cannot be convalidated The only property relationship between the parties is a co-ownership The children are illegitimate, except children of void marriages under Art. 36 and 53 of FC Art. 36 children born under marriage that is void on the ground of psy. Incapacity Art. 53 children born of the first marriage of parties before said first marriage had been annulled or declared void, and those who marry a second time without delivering the presumptive legitime of the children of their first marriage Page 11 of 22

A Filipina who marries an alien husband

Lesley Claudio (A 2012)

Conflict of Laws The marriage cannot be attacked collaterally The marriage can no longer be impugned after the death of the spouses The marriage may be attacked directly or collaterally The marriage can still be impugned even after the death of the spouses

Comprehensive reviewer of Sempio-Diy book (3) Although the petitioner was a national of another country, he or she had his or her residence in the place where the divorce was obtained In the US, a state has a duty to recognize a divorce obtained in a sister state if the spouses were domiciled in the latter state A divorce obtained in a foreign country would be recognized under the same circumstances that a divorce obtained from a sister state is given recognition in the Philippines, if both spouses are aliens, we recognize a decree of divorce obtained by them abroad if valid under their national law If one of the spouses is a Filipino and the other an alien, we also recognize the divorce obtained by the alien spouse abroad Divorce Absolute divorce, dissolves the marriage and the parties can marry again

2. 3.

Conflicts rules on annulment and declaration of nullity of marriage 1. In Conflict of Laws, the grounds for annulment of marriage and for declaration of nullity of marriage are the grounds provided for by the law alleged to have been violated lex loci celebrationis or the law of the place where the marriage was celebrated Reason: Considering that it is the lex loci celebrationis that is usually applied to determine whether a marriage is valid or not, it is the same law that also determines whether a marriage is voidable or void 2. As for declaration of nullity of marriage between two Filipinos abroad, the grounds are the exceptions to the lex loci celebrationis in Article 26 of the Family Code: (1) Either or both parties did not have legal capacity to get married (Art. 35 (1)) (2) The marriage is immoral for being bigamous or polygamous (Art. 35 (4)) (3) Consent of one party is lacking, because of mistake as to the identity of the other (Art. 35 (5)) (4) One of the parties was psychologically incapacitated at the time of the marriage to comply with the essential marital obligations (Art. 36) (5) The marriage is incestuous (Art. 37) (6) The marriage is void by reason of public policy (Art. 38) 3. As to foreigners who get married abroad the exceptions to the lex loci celebrationis would be the same as those in marriages as a contract: (1) Marriages that are highly immoral (2) Universally incestuous marriages 4. Consular marriages either the national law or the law of the domicile of the parties applies Courts that have jurisdiction over cases for annulment or declaration of nullity of marriage 1. In the Philippines since we follow the nationality theory, our courts have jurisdiction Citizens and domiciliaries can file in the Philippines, even if the defendant is a nonresident 2. In other countries it is usually the courts of the parties domicile who have jurisdiction over such cases since that is the place which has the greatest interest in the domestic relations of the spouses Rules on the validity of foreign divorces by foreigners abroad 1. Hague Convention states that a foreign divorce will be recognized in the contracting states if, at the date of the filing of the proceedings: (1) The petitioner or respondent had his or her habitual residence in the state where the divorce was obtained (2) If both spouses were nationals of said state Lesley Claudio (A 2012)

4. 5.

Legal separation v. divorce Legal separation Relative divorce, only a separation from bed and board but the parties remain married

Legal separation v. annulment of marriage Legal separation Annulment Marriage is not defective Marriage is defective Grounds arise after the Grounds must exist at the marriage time of or before the celebration of the marriage Parties are still married to Marriage is set aside each other Grounds are those given by Grounds are those given by the national law or the the lex loci celebrationis domiciliary law question is subject to certain exceptions one of status questions the very existence of status Conflict rules on legal separation 1. If the parties are of the same nationality grounds for legal separation are those given by their personal law (national law or domiciliary law) 2. If the parties are of different nationalities grounds for legal separation are those under both the personal law of the husband and wife Courts that may grant legal separation 1. Jurisdiction in the case of aliens is not assumed by the forum unless the national law of the parties is willing to recognize its jurisdiction 2. In the Philippines, foreigners may ask for legal separation here, even if they did not get married in this country. What is important is that the court has jurisdiction over both parties 3. Most countries assume jurisdiction over case for legal separation on the basis of the domicile of one of the parties or the matrimonial domicile Note: It is NOT necessary that the cause for legal separation take place in the country for our courts to have jurisdiction over the case. Grounds for legal separation under Philippine internal law (Article 55, FC) 1. Repeated physical violence or grossly abusive conduct against the petitioner, a common child, or a child of the petitioner

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Conflict of Laws 2. Physical violence or moral pressure to compel the petitioner to change religious or political affiliation 3. Attempt 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 6 years, even if pardoned 5. Drug addiction or habitual alcoholism of the respondent 6. Contracting by the respondent of a subsequent bigamous marriage, whether in the Philippines or abroad 7. Lesbianism or homosexuality of the respondent 8. Sexual infidelity or perversion 9. Attempt by the respondent against the life of the petitioner 10. Abandonment of petitioner by respondent without justifiable cause for more than one year Defenses to legal separation under Philippine internal law (Article 56, FC) 1. Condonation of the offense or the act complained of 2. Consent of the aggrieved party to the commission of the act or offense complained of 3. 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. Collusion between the parties to obtain legal separation 6. Prescription Note: The prescriptive period for filing of an action for legal separation in the Philippines is 5 years from the time of the occurrence of the case (Art. 57, FC) Chapter 13 Status of Children Conflict rules in determining legitimacy of children 1. If the parents are of the same nationality their common personal law (national law or law of domicile) will be applied 2. If the parents are of different nationalities personal law of the father governs Legitimate and illegitimate children under Philippine internal law 1. Legitimate children children conceived or born during the marriage of the parents 2. Illegitimate children children conceived and born outside a valid marriage EX: Children born of void marriages under Article 36 (psychological incapacity) and Article 53 (those born of the first marriage of parties before said first marriage had been annulled or declared void, and who marry a second time without delivering the presumptive legitime of the children of their first marriage are considered LEGITIMATE CHILDREN

Comprehensive reviewer of Sempio-Diy book Law governing the rights and duties between parent and child 1. If the child is legitimate either the common personal law of the parents or the personal law of the father if the parents are of different nationalities governs 2. If the child is illegitimate The personal law of the mother is decisive, UNLESS the child is subsequently recognized by the father, in which case the rules on legitimate children will be applied Doctrine of immutability of status The status of a child (whether legitimate or illegitimate) is not affected by a subsequent change of nationality of the parents But the rights an duties of parent and child would after the parents change of nationality, be governed by the new national law of the parents Legitimation, defined A process whereby children who in fact were not born in lawful wedlock and should therefore be ordinarily considered illegitimate children are by fiction of law and upon compliance with certain legal requirements, regarded by law as legitimate, it being supposed that they were born after their parents had already been validly married. Conflicts rules on legitimation of children 1. The requisites of legitimation are generally considered those prescribed by the national law of the parents, and if the latter have different national laws, the national law of the father 2. In countries following the domiciliary theory, law of the domicile of the parents, or in proper cases, the law of the domicile of the father should govern Philippine internal law on legitimation of children (Articles 177-182, FC) Requisites for legitimated children 1. The child was conceived AND born outside lawful wedlock 2. The parents at the time of the childs conception, were not disqualified by any impediment to marry each other Note: Legitimation creates a permanent (immutable) status of the child Adoption An act, which establishes a relationship of paternity and filiation and in so doing, endows the child with legitimate status Law which determines whether the relationship of adoption has been created or not 1. The childs personal law 2. If the child does not reside in the country of his citizenship the personal law of the adopter will govern, or the personal law of the adopter and that of the child will be applied concurrently Law which determines the legal effects of adoption The legal effects of adoption are determined by the same law that created the relationship of adoption

Lesley Claudio (A 2012)

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Conflict of Laws Adoption by aliens in the Philippines Under RA 8552 or the Domestic Adoption Act of 1998, aliens (who are not even former Filipino citizens) can adopt in our country, provided: 1. The have the same qualifications as those required of Filipino citizens 2. Their countries have diplomatic relations with our country 3. They have been living in the Philippines for at least 3 years prior to the filing of the petition for adoption, and maintain such residence until the adoption decree is entered 4. The have been certified by their diplomatic or consular offices or by any appropriate government agency that they have the legal capacity to adopt in their own countries and 5. Their government allows the adopted child to enter their own country as their adopted child Special aliens who can adopt under RA 8552 1. A former Filipino citizen who seeks to adopt a relative within the 4th degree of consanguinity or affinity 2. One who seeks to adopt the legitimate son or daughter of his or her Filipino spouse 3. One who is married to a Filipino citizen and seeks to adopt jointly with his or her spouse a relative within the 4th degree of consanguinity or affinity of the Filipino spouse These aliens need not comply with the residency in the Philippines and they also need not submit a certification that they have the capacity to adopt from the diplomatic or consular office of their country in the Philippines or any other government agency Note: RA 8552 still requires that the (alien) husband and wife must jointly adopt. However in cases where the spouses are legally separated, the husband or the wife can adopt alone, and the consent of the other spouse to an adoption filed by one spouse is not necessary Nature of adoption in Philippine law 1. Adoption proceedings are always judicial an din rem, i.e., publication is required 2. A mere agreement of adoption between the adopters and the parents of the child is not a valid adoption, nor the fact that the child had been adopted de facto (ampon) by the alleged adopting parents 3. Neither is mere registration of the child in the civil registry as the child of the adopter a valid adoption. This even amounts to the crime of simulation of birth 4. The capacity and right of the adopter to file a petition for adoption are governed by the law in force at the time the petition is filed, and cannot be impaired by a new law disqualifying him or her for adoption Recognition of a foreign decree of adoption While there is no provision of law nor jurisprudence expressly requiring the Philippines to recognize a foreign decree of adoption, it is believed that under Sec. 48 of Rule 39 of the Rules on Civil Procedure, we can recognize such foreign decree of adoption provided the foreign court had jurisdiction to render said decree, and that there is no want of notice, collusion, extrinsic fraud, or clear mistake of law or fact leading to the foreign decree of adoption

Comprehensive reviewer of Sempio-Diy book Does adoption confer on the adopted child the citizenship of the adopter? No. Adoption does not confer on the adopted child the citizenship of the adopter. Adoption is a matter political and not civil in nature, and the ways in which it should be conferred are outside the ambit of the Civil Code. Chapter 14 Wills, succession, and administration of the estate of deceased persons Two theories or systems in determining the proper law for the transmissions of successional rights 1. Unitary or single system only one law determines transmission of real as well as personal properties 2. Split or scission system Succession to real property is governed by the lex situs, while succession to movable or personal property is governed by the law of the domicile of the deceased at the time of his death Note: In the Philippines, we follow the unitary or single system, in that Article 16 of the NCC applies the national law of the deceased, whatever may be the nature of the property and regardless of the country where the property is found Extrinsic v. intrinsic validity Extrinsic validity Forms and solemnities of wills Deals with the forms and solemnities in the making of wills which include: 1. Age and testamentary capacity of the testator 2. Form of the will (notarial or holographic) etc of wills Intrinsic validity Substance of wills Concerns itself with: 1. Order of succession 2. Amount of successional rights, and other matters of substance

Conflicts rules in the Philippines on extrinsic validity of wills 1. If a Filipino makes a will abroad - he may comply with the formalities of Philippine law (lex nationalii) or the lex loci celebrationis (the law of the place where he was at the time of the execution of the will) Art. 815, NCC 2. If an alien makes a will abroad - he may comply with the formalities of his lex nationalii (law of the country of which he is a citizen, the lex domicilii (law of his domicile0, or the lex loci celebrationis 3. If an alien makes a will in the Philippines he may comply with the formalities of his own country (lex nationalii) or of Philippine law (lex loci celebrationis) 4. Holographic wills must be entirely written, dated, and signed by the hand of the testator. It is subject to no other form and may be made in or out of the Philippines and need not be witnessed (Art. 810, NCC) Conflicts rules on joint wills 1. Filipinos cannot make joint wills whether he or abroad

Lesley Claudio (A 2012)

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Conflict of Laws 2. Joint wills made by aliens shall be considered valid in the Philippines if valid according to their lex nationalii or lex domicilii or if valid under lex loci celebrationis Joint wills made by aliens in the Philippines are void even if valid under their lex nationalii or lex domicilii in order that our public policy on joint wills may not be militated against A joint will executed by an alien and a Filipino citizen abroad will be valid even as to the alien (if his national law or law of his domicile or lex loci celebrationis allows it) but void as to the Filipino 3. 4.

Comprehensive reviewer of Sempio-Diy book There is no period of prescription for the probate of a will Wills proved and allowed in a foreign country according to the laws of each country may be allowed, filed, and recorded by the proper court in the Philippines Although a foreign will had already been probated in a foreign country, it still has to be reprobated in the Philippines in accordance with our procedural law it is sufficient to ask for the enforcement of the foreign judgment of the probate abroad The evidence necessary for the probate or allowance of wills which have been probated outside the Philippines are: (1) The due execution of the will in accordance with the foreign law because we cannot take judicial notice of foreign laws (2) The testator had his domicile in the foreign country where the will was probated (3) The will had been admitted to probate in said country (4) The foreign tribunal is a probate court (5) The laws of the foreign country on procedure and allowance of wills were followed

3.

5.

4.

6.

Conflicts rules on intrinsic validity of wills 1. lex nationalii in countries that follow the nationality theory 2. lex domicilii in countries that follow the domiciliary theory What governs the intrinsic validity of wills in the Philippines The NCC applies the lex nationalii of the decedent Note: in case of conflict between the nationality theory and the domiciliary theory, we can treat the case as one of renvoi so that we can still apply Philippine law even if the deceased was a citizen of another country Conflicts rules if a person dies intestate 1. In civil law countries the national law of the decased applies 2. In common law countries the lex domicilii of the deceased at the time of death applies with respect to personalty, while the lex situs applies with respect to real property Conflicts rules on revocation of wills 1. Under Art. 829 of the NCC, a revocation done outside the Philippines by a person who does not have his domicile here is valid if done according to: (1) The law of the place where the will was made (lex loci celecbrationis) or (2) The law of his domicile at the time of revocation (lex domicilii) Note: ignores the law of the place of revocation 2. If the revocation is done in the Philippines, it is valid if made in accordance with the provisions of our CC 3. If the revocation is done outside the Philippines by a person who is domiciled here, it is valid if made in accordance with our law (lex domicilii) or lex loci actus of the revocation (the place where the revocation was made) Probate, defined Probate is the process of proving before a competent court the due execution of a will, that the testator was possessed of testamentary capacity, and the approval by said court of the will Conflict rules on probate of wills 1. The allowance of disallowance of a will is essentially procedural, so that the law of the forum applies to all procedural matters 2. Art. 838, 1st par: now will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court Lesley Claudio (A 2012)

Administration of estate of deceased persons Administration is the process of determining and realizing the assets of a deceased person, the payment of the debts of the estate, and the actual distribution of the residue to the heirs Conflicts rules on administration of estate of deceased by persons 1. Administration is procedural in nature. It is the lex fori that governs not the law that determines how the estate of the deceased is to be distributed 2. In charge of the administration is the executor or an administrator with a will annexed or an administrator Executor Appointed by testator in his will Administrator with a will annexed Appointed by the court if there is a will but no executed is designated therein Administrator Appointed by the court if there is no will

3.

4.

5.

The executor is qualified, and the administrator of the estate is appointed, by the court of the country where the deceased was domiciled at the time of his death, or if he was a non-domiciliary, the country where his properties are found The rights, powers, and duties of the executor or administrator are coextensive with the territorial jurisdiction of the court that qualified or appointed him Principal domiciliary administration v. ancillary administration Principal domiciliary administration Administration granted in the country of the Ancillary administration Administration in other countries where the Page 15 of 22

Conflict of Laws deceaseds last domicile 6. deceased also left properties 2.

Comprehensive reviewer of Sempio-Diy book 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 governed by the proper law of the contract (lex loci voluntatis or lex loci intentionis) In contracts where real property is given as security by way of mortgage to secure a principle contract (i.e. loan) loan is governed by the proper law of the contract which the mortgage is governed by the lex situs While the validity of the transfer of land must be determined by the lex situs, the validity of the contract to transfer is determined by the proper law of the contract

The domiciliary administrator of the estate of a deceased American citizen in the US has no power over and is not entitled to the possession of the stock certificates of shares of stock by the deceased in a Philippine corporation, which certificates must be delivered to the ancillary administrator

3.

4.

Caduciary rights of state in Conflict of Laws There are two theories adopted by different states so that they may claim the properties left by a deceased who left no heirs and no will: 1. Some countries adopt the theory that such properties have become ownerless (bona vacantia) hence they should revert to the State where they are situated by escheat properties pass to the State as an incident of sovereignty, not as an heir 2. In the Philippines and some civil law countries the theory adopted is that the State is the last heir of a deceased person. Hence, the State succeeds to the properties left by said deceased as an heir.

Chapter 15 PROPERTY Conflict rules on real property and personal property GR: lex situs/ lex re sitae law of the place where the property is located Old rule on law on personal property/movables Mobilia sequuntur personam Personal effects or belongings of owner carried with him wherever he went. Given artificial status since did not have fixed status personal law of the owner Philippine rule on personal properties Art. 15 of the CC real property as well as personal property is subject to the law of the country where it is situated Matters governed by lex situs with respect to real property 1. Extrinsic validity 2. Intrinsic validity 3. Capacity of contracting parties 4. Interpretation of documents 5. Effects of ownership 6. Co-ownership 7. Accession 8. Usufruct 9. Lease 10. Easement 11. Quieting of title 12. Registration 13. Prescription 14. Police power 15. Eminent domain 16. Taxation Exceptions to the rule on lex situs with respect to real properties 1. Succession governed by national law (in Philippines) not lex situs Lesley Claudio (A 2012)

Rules in giving constructive situs to choses in possession that are usually in motion VESSELS Public vessel Law of the flag Private or commercial Law of the country or vessel place of registry If vessel is docked at a Said port is deemed as its foreign port temporary situs GOODS IN TRANSIT As to liability for loss, Law of destination (Art. destruction, or 1734, CC) deterioration of goods in transit The validity and effect Law of the place where of seizure of goods in the goods were seized transit (temporary situs) Disposition or Proper law of the contract alienation of goods in (lex loci voluntatis or lex transit loci intentionis) Rules in giving constructive situs to intangible personal properties or choses in action CREDITS OR DEBTS Involuntary transfer of The situs of the place assignment of a debt where the debtor may be (garnishment) served (usually his domicile) The proper law of the contract (the proper law of the original transaction out of which the chose in action or credit arose) Other theories: 1. The law of the place where the assignment is executed 2. The law of the place where performance or payment is normally expected 3. The national law of the parties Domicile of creditor

Voluntary assignment or transfer of credit

Situs of a debt for taxation purposes Administering debts

Situs is the place where the assets of the debtor are situated NEGOTIABLE INSTRUMENTS The law that Law governing rights Page 16 of 22

Conflict of Laws determines whether the instrument is negotiable or not embodied in the instrument Note: American Restatement claims that the situs is the place where the instrument was executed The law of the situs of the instrument at the time of transfer, delivery, or negotiation

Comprehensive reviewer of Sempio-Diy book agreement related to intellectual property rights to which the Philippines is also a party or which extends reciprocal rights to our nationals by law, shall be entitled to the benefits to the extent necessary to give effect to any provision of such convention. - Foreign corporation even if not engaged in business in the Philippines may nevertheless bring a civil or administrative action, for opposition, cancellation, infringement, or unfair competition.

The law that determines the validity of the transfer, delivery, or negotiation of the negotiable instrument SHARES OF STOCKS OF CORPORATIONS Sale of shares of stocks Law of the place of incorporation since transfer is recorded in the books of the corporation Sale of corporate Governed by the proper shares as between the law of the contract (lex parties loci voluntatis or lex loci intentionis) Taxation on dividends Law of the place of received by corporate incorporation shares FRANCHISES Franchises Law of the state that - special privileges granted them conferred by the government on an individual or corporation Goodwill of a business Goodwill of business Good will of business and taxation thereon are -Art. 521, NCC: property governed by the law of and may be transferred the place where the together with the right to business is carried on use the name under which the business is conducted Goodwill -The patronage of any established trade or business Patents, copyrights, trademarks, trade names, and service marks Patents, copyrights, GR: in the absence of a trade marks, trade treaty, protected only by names the state that granted or recognized them

Chapter 16 CONTRACTS Contract, defined Art. 1305, NCC: Meeting of minds between two persons whereby one binds himself, with respect to the other, to give something or to render some service. The specific subject of contract in Conflict of Laws is limited to purely civil or commercial transactions. Conflicts rules in determining extrinsic validity of contracts GR: the extrinsic validity of contracts is governed by the lex loci celebrationis/ lex loci contractus Variations to the rule of lex loci intentions in determining extrinsic validity of contracts 1. A contract entered into by parties in two different countries by cablegram, telex, or fax Art. 1319 par. 2: Acceptance made by letter or telegram does not bind the offeror except from the time it came to his knowledge. The contract in such a case is presumed to have been entered in the place where the offer was made American law: contract is deemed entered into in the place where the acceptance of the offer is posted or mailed 2. Place of execution was merely casual or accidental The law which has the most significant relationship to the transaction should be applied 3. (EX) When the lex loci contractus/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, or if the transaction is contra bonos mores Conflict rules in determining capacity of parties to a contract GR: Capacity to enter into contracts is generally governed by the personal law of the parties In Phil., Art. 15 NCC: Capacity of a Filipino is governed by Philippine law (nationality theory)

Art. 520, NCC: a trade mark or a trade name duly 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 Intellectual property Code: Any foreign corporation being a national or domiciliary o a country which is a party to a convention, treaty, or Lesley Claudio (A 2012)

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Conflict of Laws EX: Contracts involving alienation or encumbrance of property both real and personal capacity is governed by the lex situs Conflict rules in determining intrinsic validity of contracts 1. GR: Intrinsic Validity of contracts is governed by the proper law of the contract lex loci voluntatis or lex loci intentionis 2. American Law (Second Restatement): (1) law to be applied should be the law chosen by the parties (2) If none, the law of the state which has the most significant relationship to the parties or to the transaction 3. Prof. Raleigh Minor advocates application of different laws: (1) As to the perfection of contract: lex loci celebrationis (2) As to the validity of the consideration lex loci considerationis (3) As to questions of performance lex loci solutionis Philippine conflict rules on intrinsic validity of contracts 1. We have no specific provision of law applicable to conflict rules on the intrinsic validity of contracts However the policy of our law is to give effect to the intention of the parties 2. We should apply the proper law of the contract (lex loci voluntatis (express) or lex loci intentionis (implied) Limitations to the courts choice of law in determining the intrinsic validity of contracts 1. Generally, the parties cannot select a law that has no connection at all with the transaction 2. If the law selected should change, it is the new law that should be applied EX: Change of new law is so revolutionary that it could never have been contemplated by parties 3. Several laws may be selected, each of which will govern the different elements of the transaction 4. If under the selected law, the contract is legal but in the place of performance, it is illegal, the selected law should prevail (valid contract) 5. Questions of substantial and essential validity (void, valid, voidable) of the contracts should be governed by the proper law of the contracts Minor details: time of payment, etc. should be governed by the law of performance 6. Parties cannot stipulate on the jurisdiction of the courts our oust or courts jurisdiction 7. The parties cannot contract away applicable provisions of law 8. American law recognizes cognovit clauses if the parties were of equal bargaining power and debtor and the debtor voluntarily agreed to said clause Cognovit clauses: specify which courts would have jurisdiction in case of breach or default in payment, or it may waive debtors right to notice (confession of judgment)

Comprehensive reviewer of Sempio-Diy book Extrinsic validity Barter, sale, donation Lease of property: creates real rights Lease of property: does not create real rights Pledge, chattel mortgage, real estate mortgage, antichresis Contract of loan: mutuum Contract of loan: commodatum Lease of service, agency, guaranty, suretyship Note: Agency to alienate or encumber real property is governed by lex situs Lex loci celebrationis Personal Lex loci law of voluntatis parties Liability for loss, destruction, deterioration of goods in transit: law of destination of goods (Art. 1753, NCC) If COGSA applies, limiation on liability applies, unless the shipper declares value of goods and inserts such declaration in the bill of lading Contract for air transportation (Warsaw Convention) 1. The liability of the airline in case of death, injury to passengers, or loss or damage to cargo is governed by Warsaw Convention 2. If there was malice, gross negligence, or bad faith, or improper discrimination, carrier is liable for damages beyond those limited by Warsaw Convention Lex situs Lex situs Capacity of parties Lex situs Lex situs Intrinsic validity Lex situs Lex situs

Lex loci celebrationis

Personal law of the parties Lex situs

Lex voluntatis or lex loci intentionis Lex situs

Lex situs

Lex loci celebrationis Lex situs Lex loci celebrationis

Personal law of the parties Lex stius Personal law of parties

Lex loci voluntatis or lex loci intentionis Lex situs Lex loci volntatis or lex loci intentionis

Contract of transportation or carriage (render services)

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Conflict of Laws 3. Chapter 17 TORTS Tort, defined Legal wrong committed upon person or property independent of contract Spanish law: quasi delict/culpa aquiliana fault or negligence American law: broader fault or negligence and also those committed with malice or willful intent Concept of tort in the Philippines Blending of both Spanish and American laws Art. 20 NCC: Every person who, contrary to law, willfully or negligently causes damage to another, shall indemnify the latter for the same. Art. 2176 NCC: 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. Law governing liability for torts in Conflict of Laws Liability for torts in general is governed by the lex loci delicti commissi (law of the place where the delict or wrong was committed) State where the social disturbance occurred has the primary duty to redress the wrong and determine the effects of the injury; and To compensate victim for the damage or injury suffered Three theories in determining locus delicti 1. Civil law theory The locus delicti is the place where the act began 2. Common law theory The locus delicti is the place where the wrongful act became effective 3. Theory of Dr. Rabel The locus delicti is the place which has the most substantial connection with the wrongful act Modern theories in determining liability for torts 1. State of the most significant relationship the rights and obligations of parties in a case of tort is determined by the local law of the state which, with respect to the particular issue, has the most significant relationship to the occurrence and the parties 2. The interest-analysis approach This approach considers the relevant concerns that two or more states may have in the case and their respective interests in applying their laws to it If however, the case poses a real conflict between two or more States, if the interested forum finds that he other State has a greater claim in the application of its law to a given case, the forum should yield and apply the law of the other state. If the forum is disinterested in the case, it can dismiss the same on the ground of forum non conveniens In short, the state which has the more relevant and weighty interests in the case should be considered the locus delicti

Comprehensive reviewer of Sempio-Diy book Qavers principle of preference Under this theory, a higher standard of conduct and financial protection given to the injured party by one state is applied by the State where the injury happened, if the latter state adopts a lower standard of conduct and financial protection to the injured

Conflict rules on maritime torts 1. If the tort is committed abroad a public vessel, whether on the high seas or in foreign territorial waters, the law of the flag is the lex loci delicti commissii 2. If the tort is committed aboard a private or merchant vessel on the high seas, the law of the registry is the lex loci delicti commissii 3. If two vessels collide and are from the same state, the law of registry is the lex loci delicti commissii 4. If the vessels come from different states with identical laws, apply said identical laws 5. If the vessels come from different states with different laws, the lex loci delicti commissii is the general maritime law as understood and applied by the forum where the cas eis filed Foreign tort to be actionable/subject of an action for damages in the Philippines Requisites/Conditions 1. Must acquire jurisdiction over the defendant (action for damages is action in personam) 2. Foreign tort must not be penal in character 3. The enforcement of the tortuous liability should not contravene our public policy 4. Our judicial machinery must be adequate for such enforcement Note: all procedural matters are governed by the lex fori Phil law). Substantive matters are governed by the lex loci delicti commissii, thus: (1) Period of prescription of the action is governed by lex loci delecti commissii because in Philippine law, prescription is substantive not procedural (2) Proper parties, measure of damages, and the question whether the acts complained of is considered the proximate cause of the injury are governed by the lex loci delicti commissii (3) The burden of proof and defenses that may be interposed by defendant are also governed by lex loci delicti commissii

Chapter 18 CRIMES Tort v. Crime Tort

Crime Both are wrongs Violates private rights Committed against state Instituted by injured person Prosecuted in the name of against wrongdoer in civil the State against the case, the purpose of which offender in criminal actions is indemnification for for the purpose which are damages suffered protection and vindication of

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Conflict of Laws interests of the public as a whole, punishment of the offender, the reformation of offender, or to deter others from committing the same act Local in character and can be prosecuted only in the place or states where the crimes are committed

Comprehensive reviewer of Sempio-Diy book Note: In the Philippines, we follow as a GENERAL RULE the territorial theory, and by way of EXCEPTION, the protective theory Cases where we follow the protective theory Art. 2, RPC: Except as provided in the treaties and laws of preferential application, the provisions of this Code shall be enforced not only within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, but also outside of its jurisdiction, against those who: 1. Should commit an offense while on a Philippine ship or airship; 2. Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippine Islands; 3. Should be liable for acts connected with the introduction into these islands of the obligations and securities mentioned in the preceding number; 4. While being public officers or employees, should commit an offense in the exercise of their functions; or 5. Should commit any of the crimes against national security and the law of nations Jurisdiction over crimes committed on board a foreign vessel if said vessel is within territorial waters English Rule French Rule Emphasizes territorial Emphasizes nationality principle theory The territory where the The State whose flag is crime was committed will flown by the vessel has have jurisdiction EXCEPT: jurisdiction EXCEPT if the crime affects the 1. In matters relating to internal order peace, order, security, and and disciple of the safety of the territory vessel and 2. Those which affect solely the ship and its occupants such as minor or petty criminal offenses committed Note: Under Art. 27 of UNCLOS, Philippine courts do not acquire jurisdiction over crimes committed on board a vessel even if it is within our territorial waters as long as the effect of such crime does not disturb our peace and order. This is similar to the French rule.

Transitory in character tortfeasor can be made liable for his wrongful act in any jurisdiction where he may be found

Note: The determination of whether a wrongful act is a tort or crime depends on the characterization of the act in the state where said act is committed Different theories that determine whether a state or a legal system has jurisdiction to take cognizance of criminal cases Under this theory, the state where the crime was Territorial theory committed has jurisdiction to try the case, and its penal code and the penalties described therein will apply Subjective territorial principle The state where the crime was begun may prosecute the same, even if it was completed in another state Objective territorial principle The state can prosecute crimes began abroad but completed within its territory The country of which the criminal is a citizen or subject has jurisdiction to try him for crimes allegedly committed by him, whether inside or outside its territory, provided it is a crime under said countrys penal law Any state whose national interests may be jeopardized has jurisdiction over criminal offenses, even if it is committed outside its territory and even if committed by an alien Any state whose penal code has been transgressed upon has jurisdiction, whether the crime was committed inside or outside its own territory Any state where the criminal is found or which has obtained custody over him can try him, unless extradition applies The state of which the victim is a victim or subject has jurisdiction to prosecute the offense

Nationality or personal theory

Protective theory

Chapter 19 BUSINESS ASSOCIATIONS Corporation, defined Sec. 2 of Corporation Code: An artificial being created by operation of law, having the right of succession and the powers, attributes, and properties expressly authorized by law or incident to its existence Foreign corporation, defined Sec. 123 of Corporation Code: One formed, organized, or existing under any laws other than those of the Philippines and whose laws allow Filipino citizens and corporations to do business in its own country or state

Real or eclectic theory

Cosmopolitan or universality theory

Passive personality or passive nationality theory

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Conflict of Laws Theories in determining the personal law or governing law of a corporation 1. The theory that the personal law is the law of the place of incorporation 2. The theory of the place or center of management 3. The theory of the place of exploitation Note: In the Philippines, we follow the theory of the place of incorporation Domicile of a corporation Art. 51 of NCC: When the law creating or recognizing them, or any other provision does not fix the domicile of judicial persons, the same shall be understood to be the place where their legal representation is established or where they exercise their legal functions Under Corporation Code, the place of incorporation of a Philippine corporation is also its domicile As for a foreign corporation that has been granted a license to operate or to do business in the Philippines, it acquires domicile in this country by virtue of said license Exceptions to the theory that the personal law or the nationality of a corporation follows the place of its incorporation 1. For constitutional purposes even if a corporation was incorporated in the Philippines, it cannot exploit or develop our natural resources nor operate public utilities unless 60% of the capital is Filipino owned (Constitution) 2. For wartime purposes We adopt the control test we pierce the veil of corporate identity and go into the nationality of the controlling stockholders to determine whether a corporation is an enemy corporation Matters that are governed by the personal law of the corporation 1. Requisites for the formation of the corporation 2. Required number of incorporators and the members of the board of directors 3. The kinds of shares of stock allowed 4. The transfer of stocks 5. The issuance, amount, and legality of dividends 6. The powers and duties of the officers, stockholders, and members Law that determines the validity of corporate acts and contracts Determined by the place of incorporation AND by the law of the place of performance May a foreign corporation sue and be sued in the Philippines? Yes, if it has the necessary license to do business in the Philippines. The license is required not to forbid the foreign corporation from performing single acts but 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 Jurisdiction over foreign corporations doing business in the Philippines, how acquired By service of summons on: 1. Its resident agent 2. If no such agent, on the government official designated by law to that effect; or 3.

Comprehensive reviewer of Sempio-Diy book On any of its officers or agents within the Philippines (Rules of Court)

Status of a contract of a foreign corporation who transacts business here without the necessary license Unenforceable, but the person who contracted with the corporation may be in estoppel if he had received benefits from contract Instances when a foreign corporation not doing business in the Philippines can sue in Philippine courts 1. Isolated transactions 2. To protect its reputation, corporate name, and goodwill 3. For infringement of trademark or trade name Law that applies to multinational or transnational corporations These are actual branches of big mother corporations. The branches having incorporated in the states where they are established are governed by the internal law of said states, and their personal laws are the local laws of host states Partnership A partnership exists when two or more persons bind themselves to contribute to money, property, or industry to a common fund, with the intention of dividing the profits among themselves (Art. 1767, NCC) A partnership, like a corporation, has a juridical personality separate and distinct from that of each of the partners Personal or governing law of a partnership Law of the country where it is created Domicile of a partnership Art. 51 of NCC: The place where their legal representation is established or where they exercise their principal functions

Chapter 20 RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS Enforcement v. recognition Enforcement of foreign judgment Means that the plaintiff or petitioner wants the court to positively carry out and make effective the foreign judgment Implies an act of sovereignty Requires separate action or proceeding brought precisely to make foreign judgment effective

Recognition of foreign judgment Means that eh defendant or respondent is presenting the foreign judgment on the basis of res judicata Involves merely a sense of justice Being a matter of defense, recognition needs no action or proceeding but implies that an action or proceeding has already been filed against the defendant who is invoking the foreign judgment Recognition does not need or does not require enforcement

Enforcement cannot exist without recognition

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Conflict of Laws Reasons why a local court in the Philippines may refuse to recognize or enforce a foreign judgment 1. The requisite proof of the foreign judgment may not have been presented The manner of proving a foreign judgment is the same as proving a foreign law 2. The foreign judgment may contravene a recognized and established policy in our country 3. The administration of justice in the country where the judgment came from may be shockingly corrupt or not beyond reproach Conditions or requirements before a local court in the Philippines can enforce or recognize a foreign judgment 1. There must be adequate proof of the foreign judgment 2. The judgment must be on a civil or commercial matter, not on a criminal, revenue, or administrative matter 3. There must be NO: (1) Lack of jurisdiction (2) Want of notice (3) Collusion (4) Clear mistake of law or fact 4. The foreign judgment must not contravene a sound and established public policy of the forum 5. The judgment must be res judicata: (1) The judgment must be final (2) Foreign court must have jurisdiction over subject matter and parties (3) The judgment must be on the merits; and (4) There was identity of parties, subject matter, and cause of action Effects of foreign judgments in the Philippines under Rules of Court Sec. 48, Rule 39, 1997 Rules on Civil Procedure provides: The effect of foreign judgment or final order 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 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.

Comprehensive reviewer of Sempio-Diy book

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