transactions transactions

ATENEO CENTRAL BAR OPERATIONS 2007 which involve which involve

Civil Law a foreign a foreign
SUMMER REVIEWER element element
—Adviser: Dean Cynthia del Castillo Head: Joy
Ponsaran, Eleanor Mateo; Understudy: Joy Tajan, Transactions Private Generally
John Paul Lim; involved transactions affected
Subject Head: Laarni Pichay; between by public
private interest;
CONFLICT OF LAWS individuals those in
CHAPTER 1: GENERAL PROVISIONS general
PRIVATE INTERNATIONAL LAW are of interest
• That part of the law of each State or nation only
which to sovereign
determines whether, in dealing with a legal States
situation, the law or some other State or nation
will be recognized, given effect, or applied (16 Remedies Resort to May be
Am Jur, 2d, Conflict of Laws, §1). and municipal peaceful
• That part of municipal law of a State which Sanctions tribunals or forcible
directs its courts and administrative agencies, Peaceful:
when confronted with a legal problem involving a includes
foreign element, whether or not they should diplomatic
apply negotiation,
a foreign law/s (Paras). tender
• NOTE: A factual situation that cuts across & exercise of
territorial lines and is affected by diverse laws of good
two or more States is said to contain a foreign offices,
element. mediation,
FUNCTIONS OF CONFLICT OF LAW RULES inquiry &
1. To proscribe the conditions under which a conciliation,
court arbitration,
or agency is competent to entertain a suit or judicial
proceeding involving facts containing a foreign settlement by
element; ICJ,
2. To determine the extent, validity and reference to
enforceability of foreign judgment regional
3. To determine for each class of cases the agencies
particular system if law by reference to which the Forcible:
rights of the parties must be ascertained includes
DISTINGUISHED FROM PUBLIC severance of
INTERNATIONAL diplomatic
LAW relations,
BASIS CONFLICT OF retorsions,
LA reprisals,
BASIS CONFLICT LAW OF embargo,
OF LAW NATIONS boycott,
Nature Municipal in International non-
character in intercourse,
character pacific
blockades,
Persons Dealt with by Dealt with by collective
involved private private measures
individuals; individuals; under
governs governs the UN
individuals in individuals in Charter,
their private their private and war.
 thing or subject matter is situated; the title to
Sources Generally Custom, realty or question of real estate law can be
derived from Treaty affected only by the law of the place where it is
the internal and General situated
law of the Principles of 6. Lex Situs - law of the place where property is
state; except law, situated; the general rule is that real property is
any conflict of recognized by governed by the law of the State where it is
law question civilized situated
governed by nations 7. Lex Loci Actus - law of the place where the
a treaty and juridical act
decisions and was done
teachings of 8. Lex Loci Celebrationis - law of the place
the where
most highly the contract is made
qualified 9. Lex Loci Solutionis - law of the place of
publicists solution; the law of the place where payment or
performance of a contract is to be made
W
10. Lex Loci Delicti Comissi - law of the place
LAW OF NAT
where the crime took place
SOURCES OF CONFLICT OF LAWS
11. Lex Mercatoria - law merchant/commercial
Direct Indirect
law;
Constitutions Natural Moral Law
system of laws adopted by all commercial
Codifications Work of Writers
nations
Special Laws
and constitute as part of the law of the land; part
International Customs
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12. Lex Non Scripta - the unwritten common
law,
Civil Law Summer Reviewer which includes general and particular customs
ATENEO CENTRAL BAR OPERATIONS 2007 and particular local law
Page 252 of 297 13. Lex Patriae - national law
Treatises and 14. Depecage – where different aspects of a
International case
Conventions involving a foreign element may be governed by
Judicial Decisions different systems of law
DEFINITION OF TERMS: 15. Renvoi Doctrine - doctrine whereby a jural
1. Lex Domicilii- law of the domicile; in matter is presented which the conflict of laws
conflicts, rules of the forum refer to a foreign law which in
the law of one's domicile applied in the choice of turn, refers the matter back to the law of the
law questions. forum or a third State. When reference is made
2. Lex Fori - law of the forum; that is, the back to the law of the forum, this is said to be
positive remission, while reference to a third State is
law of the State, country or jurisdiction of whose called transmission.
judicial system the suit is brought or remedy is 16. Double Renvoi – occurs when the local
sought. Substantive rights are determined by the court, in
law where the action arose (lex loci) while the adopting the foreign court theory, discovers that
procedural rights are governed by the law of the the foreign court accepts the renvoi; ultimately
place of the forum (lex fori) then, it is the foreign internal law that will be
3. Lex Loci - law of the place used
4. Lex Loci Contractus - the law of the place 17. Desistment – mutual disclaimer of
where the contract was made or law of the place jurisdiction
where the contract is to be governed (place of 18. Foreign Court Theory – the local forum, in
performance) which may or may not be the deciding the case, will put itself in the position of
same the foreign court, and whatever the foreign court
as that of the place where it was made will do respecting the case, the local forum will
5. Lex Loci Rei Sitae - law of the place where likewise do
the
19. Nationality Theory - by virtue of which the
status
and capacity of an individual are generally
governed by the law of his nationality. This is
principally adopted in the RP.
20. Domiciliary Theory - in general, the status,
condition, rights, obligations, & capacity of a
person should be governed by the law of his
domicile.
21. Long Arm Statutes - statutes allowing the
courts
to exercise jurisdiction when there are minimum
contacts between the non-resident defendant
and the forum.
CHAPTER 2: JURISDICTION
• In international law, it is often defined as the
right
of a State to exercise authority over persons and
things within its boundaries, subject to certain
exceptions.
JURISDICTION OVER THE PERSON
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1. Jurisdiction over the person of the plaintiff is
acquired from the moment he invokes the aid of
the court and voluntarily submits himself by
institution of the suit through proper pleadings
2. Jurisdiction over the person of the defendant
is
acquired through:
a. Voluntary appearance or
b. Personal or Substituted service of summons
JURISDICTION OVER PROPERTY
• Results either from seizure of the property
under
a legal process or from the institution of legal
proceedings wherein the court’s power over the
property is recognized and made effective.
• This kind of jurisdiction of jurisdiction is
referred
to as in rem jurisdiction. Another form of
jurisdiction is quasi in rem which affects only the
interests of particular persons in the thing.
• NOTE: Summons by publication is authorized
in
three cases:
1. If the action is in rem
2. quasi in rem
3. Involves the personal status of the plaintiff
MINIMUM CONTACTS TEST AND
FUNDAMENTAL
FAIRNESS TEST
• Due process requires only that in order to
subject
a defendant to a judgment in personam, if he is
not present within the territory of the forum he
should have certain minimum contacts with it
such that the maintenance of the suit does not
offend traditional notions fair play and
substantial
justice.
• In both in rem and quasi-in rem, all that due
process requires is that defendant be given
adequate notice and opportunity to be heard
which are met by service of summons by
publication.
LONG-ARM STATUTES
• Statutes which specify the kinds of contacts
which jurisdiction will be asserted over a
defendant outside of state territory.
JURISDICTION OVER THE SUBJECT
MATTER
• Jurisdiction over the subject matter is conferred
by law
CHAPTER 3: WAYS OF DISPOSING
CONFLICTS
CASES
1. DISMISS THE CASE FOR LACK OF
JURISDICTION
2. DISMISS THE CASE ON THE GROUND OF
FORUM NON-CONVENIENS.
DOCTRINE OF FORUM NON-CONVENIENS
• A forum may resist imposition upon its
jurisdiction
even when jurisdiction is authorized by law on
the
ground that the forum is inconvenient or the
ends
of justice would be best served by trial in
another
forum or the controversy may be more suitably
tried elsewhere
• ELEMENTS
a. The forum State is one to which the parties
may conveniently resort to;
b. It is in a position to make an intelligent
decision as to the law and the facts; and
c. It has or is likely to have power to enforce its
decision.
3. ASSUME JURISDICTION AND APPLY THE
FORUM LAW
INSTANCES WHEN INTERNAL LAW SHOULD
BE
APPLIED:
a. A specific law of the forum decrees that
internal
law should apply
• EXAMPLES:
i. Article. 16 of the Civil Code - real and
personal property subject to the law of the
country where they are situated and
testamentary succession governed by lex
nationalii
ii. Article 829 of the Civil Code - makes
revocation done outside Philippines valid
according to law of the place where will was
made or lex domicilii
iii. Article 819 of the Civil Code - prohibits
Filipinos from making joint wills even if valid
in foreign country
b. The proper foreign law was not properly
pleaded
and proved
• NOTE: As a general rule, courts do not take
judicial notice of foreign laws; foreign laws must
be pleaded and proved
• The following actions may be resorted in case
of
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failure to prove and plead the proper foreign law:
i. Dismiss the case for inability to establish
cause of action
ii. Assume that the foreign law of the same as
the law of the forum (processual
presumption)
iii. Apply the law of the forum
3. The case falls under any of the exceptions to
the
application of foreign law.
• EXCEPTIONS:
a. The foreign law is contrary to the public
policy of the forum
b. The foreign law is procedural in nature
c. The case involves issues related to property,
real or personal (lex situs)
d. The issue involved in the enforcement of
foreign claim is fiscal or administrative
e. The foreign law or judgment is contrary to
good morals (contra bonos mores)
f. The foreign law is penal in character
g. When application of the foreign law may work
undeniable injustice to the citizens of the
forum
h. When application of the foreign law might
endanger the vital interest of the State
4. ASSUME JURISDICTION AND APPLY
FOREIGN LAW
• As a general rule, no rule of Private
International
Law would be violated if the courts should
decide
to dispose of cases, according to the internal law
of the forum
• EXCEPT: Where a foreign, sovereign,
diplomatic
official, or public vessel or property of another
state is involved, or where a state has by treaty,
accepted limitations upon its jurisdiction over
certain persons or things.
THEORIES WHY FOREIGN LAW SHOULD BE
GIVEN EFFECT:
1. Theory of Comity – foreign law is applied
because of its convenience & because we want
to give protection to our citizens, residents, &
transients in our land
2. Theory of Vested Rights – we seek to
enforce
not foreign law itself but the rights that have
been
vested under such foreign law; an act done in
another State may give rise to the existence of a
right if the laws of that State crated such right.
3. Theory of Local Law- we apply foreign law
not
because it is foreign, but because our laws, by
applying similar rules, require us to do so;
hence,
it is as if the foreign law has become part &
parcel of our local law
4. Theory of Harmony of Laws – we have to
apply
the foreign laws so that wherever a case is
decided, that is, irrespective of the forum, the
solution should be approximately the same;
thus,
identical or similar solutions anywhere &
everywhere. When the goal is realized, there will
be “harmony of laws”
5. Theory of Justice – the purpose of all laws,
including Conflict of Laws, is the dispensing of
justice; if this can be attained in many cases
applying the proper foreign law, we must do so.
CHAPTER 4: RECOGNITION AND
ENFORCEMENT OF FOREIGN JUDGMENTS
• A foreign judgment is recognized when it is
given the same effect that it has in the state
where it was rendered with respect to the
parties,
the subject matter of the action and the issues
involved. Where the foreign judgment is being
presented as a defense to the claim of the
plaintiff, what is involved is the recognition of a
foreign judgment.
• A foreign judgment is enforced when, in
addition
to being recognized, a party is given affirmative
relief to which the judgment entitles him. When a
plaintiff asks the court of one state to carry out
and make effective a judgment obtained by him
in another state, what is involved is the
enforcement of a foreign judgment.
REQUISITES FOR RECOGNITION AND
ENFORCEMENT OF FOREIGN JUDGMENTS
1. Foreign judgment was rendered by a judicial
or a
quasi-judicial tribunal which had competent
jurisdiction over the parties and the case in the
proper judicial proceedings in which the
defendant shall have be given reasonable
notice and the opportunity to be heard.
2. It must be a judgment on civil and
commercial
matters.
3. The judgment must be valid according to the
court that delivered it;
4. Judgment must be final and executory to
constitute res judicata in another action;
• ELEMENTS: The judgment must be
a. Final
b. Rendered by a competent court
c. On the Merits
d. Involve the same parties, subject matter and
cause of action.
5. Foreign judgment must not be contrary to the
public policy or the good morals of the State
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where it is to be enforced; and
6. Judgment must not have been obtained by
fraud,
collusion, mistake of fact or mistake of law.
7. The foreign judgment must not be barred by
prescription under the law of the State in which it
was promulgated or under the law of the State in
which its recognition/enforcement is sought.
DISTINCTION BETWEEN RECOGNITION AND
ENFORCEMENT
PROOF OF FOREIGN LAWS
1. Written Law
a. By written publication
b. Copy attested to by the officer having
custody accompanied with a certificate that
such officer has the custody and sealed by
the appropriate public officer (section 24 rule
132 of the Revised Rules of Court)
2. Unwritten Law
• By the oral testimony of expert witnesses or
writings of jurists
EFFECTS OF FOREIGN JUDGMENTS
• Under the Rules of Court, in case of a
judgment
against a specific thing, the judgment is
conclusive upon the title of the thing.
• In case of a judgment against a person, the
judgment is presumptive evidence of a right as
between the parties and their successors-
ininterest
by a subsequent title; but the judgment
may be repelled by evidence of want of
jurisdiction, want of notice to the party, collusion,
or clear mistake of law or fact.
CHAPTER 5: CHARACTERIZATION
• The process by which a court at the beginning
of
the choice of law process assigns a disputed
question to the proper area in substantive law
STAGES IN CHARACTERIZATION:
1. Determination of the factual situation
2. Characterization of the factual situation
3. Determination of the applicable Conflicts rule
4. Characterization of the Point of Contact or the
Connecting Factor
5. Determination between procedural and
substantial matter
6. Pleading and Proving of the proper law
STATUTE OF FRAUDS
1. Substantive – If the words of the law relate to
forbidding the obligation
2. Procedural – If the law forbids the
enforcement
of the obligation
STATUTE OF LIMITATIONS
1. Substantive – When the limitation was
directed
to the newly created liability specifically to
warrant a qualification of the right
2. Procedural – If it operates to bar the legal
remedy without impairing the substantive right
involved.
• NOTE: Borrowing statutes direct the state of
the
forum to apply the foreign statute of limitations to
the pending claim based on a foreign law (treats
the statute of limitations as a substantive law)
DEPECAGE
• The phenomenon where the different aspects
of
the case involving a foreign element may be
governed by different systems of laws.
TESTS OR FACTORS TO DETERMINE
POINTS OF
CONTACT:
• Circumstances which may serve as the whenever the content of the otherwise
possible applicable
test for the determination of applicable law: foreign law is excluded from application in a
RECOGNITION OF givem case for the reason that it fails under one
FOREIGN JUDGMENT of the exceptions to the application of foreign
ENFORCEMENT OF law.
FOREIGN JUDGMENT 8. The flag of the ship, which in many cases is
Courts will allow the decisive of practically all legal relationships of
foreign judgment to the
be presented as a ship and of its master or owner as such.
defense to a local CHAPTER 6: PERSONAL LAWS
litigation • The law which governs a person’s family
Plaintiff wants courts to relations, capacity or status.
positively carry out and • Three most common personal laws are the
make effective in the Nationality Rule, Domiciliary Rule, Eclectic
State a foreign Theory
judgment NATIONALITY LAW THEORY
Involves merely the • The Philippines adheres to the nationality law
sense of justice theory.
Virtually implies a direct PROBLEMS IN APPLYING THE
act of sovereignty NATIONALITY
Does not require PRINCIPLE
either an action or a 1. MULTIPLE CITIZENSHIP
special proceeding • In matters of status, he is usually considered
Necessitates a by
separate action or the forum as exclusively his own national, his
proceeding brought additional foreign nationality is disregarded
precisely to make the • In case the litigation arises in a third country,
foreign judgment the
effective law most consistently applied is that of the
May exist without country of which the person is not only a
enforcement national
Necessarily carries with but where he has his domicile or habitual
it recognition residence, or in the absence thereof, his
For BOTH recognition and enforcement, proof residence.
of the foreign judgment has to be presented. • NOTE: Article 5 of the Hague Convention on
Moreover, the requisites or conditions for the the
recognition or enforcement of foreign judgments Conflict of Nationality laws provides: “ a third
must be present. state shall, of the nationalities which such
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possesses, recognize exclusively in its territory
Civil Law Summer Reviewer either the nationality of the country of which he
is
ATENEO CENTRAL BAR OPERATIONS 2007
habitually and principally resident, or the
Page 256 of 297
nationality of the country with which in the
1. The nationality of a person, his domicile,
circumstances he appears to be closely
residence, his place of sojourn, or his origin.
connected.”
2. The seat of legal or juridical person
MULTIPLE CITIZENSHIP ARISES DUE TO:
3. Lex Situs
a. Through a Naturalized Citizen’s Failure to
4. Locus Actus
Comply with Certain Legal Requirements in
5. The place where the act is intended to take
the country of origin
effect, the place of performance of contractual
b. From a combined application of Jus Soli and
duties, or the place where the power of attorney
Jus Sanguinis principle
is to be exercised
c. By the legislative Act of States
6. Lex loci intentionis
d. By the voluntary Act of Individual concerned
7. Lex fori – applies to procedural matters and
2. STATELESSNESS
• Stateless persons are generally subject to the
law of their domicile or habitual residence, or in
default thereof, to the law of their temporary
residence.
STATELESSNESS ARISES DUE TO:
a. Deprivation of his citizenship for any cause,
such as commission of a crime
b. Renunciation of one’s nationality by certain
acts, express or implied;
c. Voluntary release from his original state;
d. If born in a country which recognizes only the
principle of jus sanguinis of parents whose
law recognizes only the principle of jus soli
• NOTE: The Convention on the Adoption on the
Reduction of Statelessness (1961) mandates
that
the jus sanguini country grants its nationality to
person born within its territory if he would be
otherwise stateless, and the jus soli country to
extend its nationality to a person who would
otherwise be considered stateless when of his
parents is a citizen of the contracting state.
Art. 15. Laws relating to family rights and duties,
or to the status, condition and legal capacity of
persons are binding upon citizens of the
Philippines, even though living abroad.
DOMICILIARY THEORY
• The individual’s private rights, status, capacity
and conditions are determined by his domicile.
DOMICILE
• Is that place where a person has certain
settled,
fixed, legal relations because:
1. it is assigned to him by law at the MOMENT
OF
BIRTH (domicile of origin)
2. It is assigned to him by law AFTER BIRTH on
account of legal disability caused for instance by
minority, insanity or marriage in the case of a
woman (constructive domicile or domicile by
operation of law)
3. he has a HOME there – that to which
whenever
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he is absent, he intends to return (domicile of
choice)
• NOTE: The forum determines domicile
according
to his own standards
GENERAL RULES ON DOMICILE:
1. No natural person must ever be without a
domicile
2. No person can have two or more domiciles at
the
same time, except for certain purposes, and
from
different legal viewpoints
3. Every sui juris may change his domicile
4. Once acquired, it remains the domicile unless
a
new one is obtained:
a. By capacitated persons
b. With freedom of choice
c. With actual physical presence
d. And Provable intent that it should be one’s
fixed and permanent place of abode, there
should be animus manendi (intent to remain)
or animus nonrevertendi (intent not to return)
5. The presumption is in favor of the
continuance of
domicile. The burden of Proof is on the one who
alleges that a change of domicile has taken
place.
SITUS OR ECLECTIC THEORY
• The capacity, legal condition, or status of an
individual should be governed by the law of the
place where an important element of the
problem
occurs or is situated.
CHAPTER 7: RENVOI
• A procedure whereby a legal matter is referred
by
the conflict of laws rules of the forum to a foreign
state, the conflict of laws rule of which, in turn
refers the matter back to the law of the forum
(remission) or a third state (transmission).
SOLUTIONS TO THE RENVOI
1. Reject the renvoi
• If the conflicts rules of the forum refer the case
to
the law of another state, it is deemed to mean
only the internal law of that state. Thus, the court
will apply the foreign law.
2. Accept the renvoi
• If the conflict rules of the forum refer the case
to
the law of another state, it is deemed to include
the totality of the foreign law (internal law and
conflicts of laws rule). Thus, the court will
recognize the referral back and apply local law.
3. Desistment theory
• The forum court upon reference to another
state’s law sees that such law is limited in
application to its own nationals domiciled in its
territory and has no provision for application to
nationals domiciled outside of the territory.
Hence, the local court will apply local law.
• This has the same result as the acceptance of personality natural
the renvoi but the process used by the forum persons
court is to desist applying the foreign law. (1) national law of the
4. Foreign Court Theory child
• Foreign court assumes the same position that (Article 15, Civil Code)
the (2) ways and effects of
foreign court would take if the case is litigated in emancipation
the foreign state. Hence: (2) national law (Art. 15)
a. If the foreign court would accept the renvoi, (3) age of majority (3) national law (Art. 15)
the local court shall apply the foreign law. (4) use of names and
b. If the foreign court would reject the renvoi, surnames
the local court shall apply lex fori. (4) national law (Art. 15)
c. If the foreign court would apply the (5) use of titles of
desistment theory, the local court shall apply nobility
Vellila v. Posadas – abandonment of one’s the (5) national law (Art. 15)
foreign law. (6) absence (6) national law (Art. 15)
domicile required deliberate and provable choice (7) presumptions of
of a new domicile, coupled with actual residence death and survivorship
in the place chosen, with a declared or provable (7) lex fori (Arts. 43,
intent that it should be one’s fixed and 390, 391, Civil Code;
permanent Rule 131, Sec. 5 (jj),
place of abode Rules of Court)
d. If the foreign court would use the foreign CHARACTERISTICS OF STATUS
court theory, then international pingpong 1. Status is conferred principally by the state not
would ensue. by
DOUBLE RENVOI THEORY the individual.
• Occurs when the local court, in adopting the 2. Status is a matter or public or social interest.
foreign court theory, discovers that the foreign 3. Status being a concept of social order, cannot
court accepts the renvoi. easily be terminated at the mere will or desire of
TRANSMISSION the parties concerned.
• Process of applying the law of a foreign state 4. Status is generally supposed to have a
thru universal
the law of a second foreign state. character: when a certain status is created by
Testate Estate of Amos G. Bellis – The renvoi law
doctrine does not apply when the referred of one country, it is GENERALLY judicially
foreign recognized all over the world.
law does not have a conflict of law rule on the CHAPTER 9: RULES ON MARRIAGE
same subject matter. The referral to the foreign MARRIAGE AS A CONTRACT
law shall immediately pertain to the internal laws • Marriage as a contract has two kinds of
of the foreign state. requisites:
CHAPTER 8: RULES ON STATUS 1. Formal – generally do NOT affect the validity
• Status, is the place of an individual in a society of
and consists of personal qualities and the marriage. Art 3 of the Family Code
relationships, more or less permanent, with provides
which for three formal requisites namely:
the state and the community are concerned. a. authority of the solemnizing officer
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c. marriage ceremony where the contracting
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2. Essential – affects the validity of the
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Art 2 of the Family Code prescribes two
FACTUAL
essential requisites to marriage:
SITUATION
a. legal capacity of the contracting parties who
POINT OF CONTACT
must be male and female
(1) beginning of
b. consent freely given in the presence of a
solemnizing officer. Between
THEORIES ON THE FORMAL REQUISITES Foreigners
OF National law (Art. 21,
MARRIAGE Family Code) provided
1. Compulsory theory – It is imperative for the the marriage is not
parties to follow the formalities of the place of highly immoral or
celebration. (this is followed in the Philippines) universally considered
2. Optional theory – parties may follow either incestuous
the Celebrated
lex loci celebrationis or their national law. This in the
rule Phils.
is followed in most countries. Mixed National law of the
3. Ecclesiastical rule – the formalities of both Filipino (otherwise
the public policy may be
lex loci celebrationis and the national law of the militated against)
parties must be complied with. Marriage
FACTUAL by Proxy
SITUATION (NOTE: a
POINT OF CONTACT Lex loci celebrationis
Between (with prejudice with
Filipinos the foregoing rules
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Exceptions: Civil Law Summer Reviewer

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37 and 38 of the
marriage by
Family Code
proxy is
(bigamous,
considered
polygamous and
celebrated
incestuous
where the
marriages)
proxy
2) consular marriages
appears)
Between
RULES GOVERNING EXTRINSIC VALIDITY
Foreigners
• GENERAL RULE: lex loci celebrationis
G.R. Lex loci
1. All states recognize as valid those marriages
celebrationis
celebrated in foreign countries if they comply
Exceptions :
with
(1) highly immoral
the formalities prescribed therein (Hague
(like bigamous
Convention)
and polygamous
2. The forms and solemnities of contracts, wills
marriages)
and
(2) UNIVERSALLY
other public instruments shall be governed by
considered
the
INCESTUOUS,
laws of the country in which they were executed
i.e., between
(Article 17, Civil Code)
brothers-sisters
3. All marriages solemnized outside the
and between
Philippines
ascendantsdescendants
in accordance with the laws in force in the
Celebrated
country where they were solemnized and valid
abroad
there as such shall also be valid in this country
Mixed Apply rule on
(Article 26, Family Code)
marriages between
• EXCEPTIONS: The following are void
foreigners – to uphold
marriages
the validity of the
between Filipinos even if valid in the foreign
marriage
country where celebrated or in case of mixed
marriages celebrated in the Philippines:
a. When either or both parties are below 18
years of age even with parental consent;
b. Bigamous and polygamous marriages;
c. Mistake as to identity of a contracting party;
d. A subsequent marriage performed without
recording in the Civil Registry the judgment
of annulment or declaration of nullity,
partition and distribution of properties and the
delivery of children’s presumptive legitimes;
e. Marriages where either spouse is
psychologically incapacitated;
f. Incestuous marriages; and
g. Void marriages by reason of public policy.
• NOTE: These exceptions put into issue the
capacity of the parties to enter into the marriage
and therefore relate to the substantive
requirement for marriage. Since the personal
law
of the parties, e.g., the national law of Filipinos,
governs the questions of intrinsic validity of
marriages between the Filipinos abroad, the
above enumerations are exceptions to lex loci
celebrationis precisely because they are
controlled by lex nationalii.
INTRINSIC VALIDITY – controlled by the
parties’
personal laws (either domiciliary or nationality)
MARRIAGE AS A STATUS
• Marriage as a status carries with it implications
in
two fields:
1. Personal rights and obligations of the
spouses – personal affair between husband
and
wife and will not ordinarily be interfered with the
courts of justice. Includes mutual fidelity,
cohabitation, respect, assistance and support;
right of wife to use husband’s name; duty to
follow husband’s residence.
• GOVERNING LAW - National law of the
husband. Subsequent change on the nationality
of the spouses are proposed to have the
following effects:
a. if both will have a common nationality – the
new one
b. if only one will change – the last common
nationality
c. if there never was any common nationality –
the national law of the husband at the time of
the wedding (Hague Convention)
2. Property Relations
• GOVERNING LAW – in the absence of a
contrary stipulation in the marriage settlement,
national law of the husband regardless of the
place of celebration of the marriage and their
residence. However, this rule shall not apply:
a. where both spouses are aliens;
b. with respect to the extrinsic validity of
contracts affecting property not situated in
the Philippines and executed in the country
where the property is located; and
c. with respect to the extrinsic validity of
contracts entered into in the Philippines not
affecting property situated in a foreign
country whose laws require different
formalities for their extrinsic validity. (Art. 80,
Family Code)
• NOTE: The subsequent change of the
nationality
of the husband or the wife has no effect on the
spouses’ original property regime EXCEPT
when
the law of the original nationality itself changes
the marital regime, in which case the property
relations should change accordingly. This is the
doctrine of IMMUTABILITY IN THE
MATRIMONIAL PROPERTY REGIME.
Recto v. Harden, 100 Phil 427 – Legislative
jurisdiction, aside from the authority to enact
laws, is
the competence of a person’s national law to
govern
his status.
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CHAPTER 10: ANNULMENT/ DECLARATION
OF
NULLITY/LEGAL SEPARATION
ANULLMENT/DECLARATION OF NULLITY
• Grounds for annulment (if the marriage is
voidable merely) and grounds for declaration of
nullity (if the marriage is void ab initio) are
governed by the law alleged to have been
violated; in other words, it is the law of the
place
of celebration (lex loci celebrationis) subject to
certain exceptions, that furnishes the grounds.
1. Jurisdiction to annul – in practically all civil
countries following the nationality principle,
nationals of the forum are permitted to sue for
annulment irrespective of their domicile. In many
countries today however, jurisdiction is vested in
the court of the domicile of the parties.
Jurisdiction over the non-resident defendant is
not essential. It is the status of the plaintiff that is
in issue. He should be domiciled in the forum.
2. The governing law – lex loci celebrationis (of legitimacy, rights
the and obligations of
marriage) determines the consequences of any parents and
defect to form. Generally, the same applies with children, including
reference to substantive or intrinsic validity. But parental authority,
with regard to capacity of the parties to marry, and reciprocal
their national law is determinative. support.
ABSOLUTE DIVORCE 1) if legitimate – national law
• GENERAL RULE: our courts only observe of the father (Art 15, Civil
relative divorce (legal separation). Any divorce Code)
sought in Philippine courts will not be granted. 2) if illegitimate – national law
Filipino couples cannot obtain absolute divorces of the mother unless
abroad and neither shall a valid divorce obtained recognized by the father in
abroad by Filipino couples be recognized here. which case, national law of
• EXCEPTIONS: the father (Art 15, Civil
1. Valid divorce obtained abroad between Code)
foreigners whose national laws allow divorce. 3) determination of whether
2. Where a marriage between a Filipino citizen legitimate or illegitimate
and (national law of the father,
a foreigner is validly celebrated and a divorce is as a rule) – (Art. 15, Civil
thereafter validly obtained abroad by the alien Code)
spouse capacitating him or her to remarry, the Doctrine of Immutability of
Filipino spouse shall have capacity to remarry Status – change of
under Philippine law. parent’s nationality does
• Hague Convention provides that the granting of not affect the status of the
divorce or separation must comply with the child
national law of the spouses and the law of the 2. Adoption –
place where the application for divorce is made. creation of the
LEGAL SEPARATION status of adoption;
• There is no obstacle to aliens in securing rights and
relative obligations of
divorce in the Philippines, provided: adopter and
1. Their national law is willing to recognize adopted
Philippine jurisdiction. 2) in general, national law of
2. Separation is agreeable to the internal law of the adopter
the NOTE: In the Philippines.
national state of the parties. adoption by a Filipino does
• NOTE: Grounds for Legal separation are the not confer Filipino citizenship
cumulative grounds provided by the national law on an adopted alien child.
of the parties (lex nationalii). 3. Guardianship
CHAPTER 11: LEGITIMACY, LEGITIMATION a) over the person
& 1) appointing 1) court of the domicile of the
ADOPTION Ibanez, 29 Phil 606 - Both our citizens and
FACTUAL aliens
SITUATION should endeavor to have their rights established
POINT OF CONTACT by
1) Paternity and the tribunals of the State which have coercive
Filiation means
(including to enforce their decisions; otherwise a person
Parental Authority runs
and Reciprocal the risk of incurring useless expenditures to
Support) – obtain a
legitimacy, judgment that cannot be enforced.
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ATENEO CENTRAL BAR OPERATIONS 2007 b. Whether or not the legitimation will have
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court c. Other connected matters
2) powers of LAWS REGULATING RELATIONS BETWEEN
guardian LEGITIMATE/D CHILDREN AND PARENTS
b) over the • Personal law of the father controls the rights
property and
1) appointing duties of parents and children.
court • EXCEPT: parental interest in the immovable
2) powers of property of the child which may be regulated by
guardian the lex situs.
c) over the person • NOTE: Reference to the personal law of the
and over the father may result in joint exercise of parental
property authority over the property of the child by father
ward and mother (Art. 221, Family Code). Father’s
2) coextensive with those of personal law could grant parental authority to
the appointing court (law of the
the appointing state) mother of the illegitimate children (Art. 176,
1) court where the property is Family Code).
found (lex rei sitae) • NOTE: Change in the nationality of the male
2) coextensive with those of parent affects the consequent relations between
the appointing court (law of the parents and child.
the appointing state) RIGHTS AND OBLIGATIONS INVOLVED
c) see 3(a) and 3(b) UNDER
4. Funerals Where the body is buried. PHILIPPINE LAWS INCLUDE:
GOVERNING LAW ON THE LEGITIMACY OF 1. Personal Care
A 2. Parental Authority
CHILD: 3. Provide for Education
• The legitimacy of the child is determined by the 4. Reciprocal Support
national law of the parents. If the parents belong LAWS REGULATING RELATIONS BETWEEN
to different nationalities, legitimacy of the child is ILLEGITIMATE CHILDREN
determined by the national law of the male • Relations between the mother and the
parent. illegitimate
• NOTE: Presumptions of Legitimacy are not child are governed by the mother’s personal law.
mere rules of evidence but are considered as • If the child is later legitimated, personal law of
substantive law, hence governed as well by the the
national law of the male parent. child follows that of the father.
RIGHTS OF A LEGITIMATE CHILD: RIGHTS OF AN ILLEGITIMATE CHILD
1. To bear the surname of the father and the 1. To use the surname of the mother
mother 2. To Support
2. receive support from their parents, brothers 3. To Legitime
and ADOPTION
sisters, in proper cases; Adoption – an act which renders a child
3. to the legitime and other successional rights. legitimate
• NOTE: The law governing the capacity to in relation to the adopting parents, to whom the
succeed and the amount of successional rights child
of Legitimation – is the act by which a person not
the legitimate children are governed by the born may or may not be related.
national law of the decedent. legitimate, is placed upon the same footing as a
LEGITIMATION legitimate child.
LAWS REGULATING RELATIONS BETWEEN 1. Jurisdiction to Grant Adoption – The
• GOVERNING LAW: The National law of the Philippine
male Courts shall have jurisdiction to grant petition for
parent at the time of the marriage shall govern: adoption but must apply the lex fori with respect
a. Whether legitimation has been effected to procedural matters.
2. Capacity of Aliens to Adopt – According to
Salonga, the cumulative substantive 2. Acquisitions of title by operation of law
requirements of the forum and of the national (e.g.
law acquisition by prescription or adverse
of the adopter must be complied with. possession, validity and priority of attachments,
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TANGIBLE PERSONAL PROPERTY
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FACTUAL SITUATION POINT OF CONTACT
3. Effects or Consequences of Adoption –
Law of the flag (or in some
a. Successional rights – governed by the
cases, place of registry)
Conflict Rules on Succession.
Means of
b. Parental Authority – governed by the national
Transportation
law of the adopter
Vessels
4. Recognition of a Decree on Adoption – The
Other means Law of the depot (storage
Philippines recognizes the principle of foreign
place for supplies or
adoptions validly rendered and recognized
resting place)
where
Law of the destination
effected. However, such adoption is still subject
(Article. 1753, CC)
to municipal law i.e. the obligation to register
Locus regit actum (where
said
seized) – because said
adoption in the civil registry. EXCEPTION, such
place is their temporary
adoption shall not be recognized if it is contrary
situs
to
Things in transitu
public policy or residents’ interest forbids its
(these things have a
enforcement (Agpalo)
changing status
CHAPTER 12: RULES ON PROPERTY
because they move)
RULES ON REAL PROPERTY
Loss, destruction,
• GENERAL RULE - Lex rei sitae (Article 16,
deterioration
CC)
Validity & effect of the
• EXCEPTIONS:
seizure of the goods
1. Successional rights – National law of
Disposition or alienage
decedent
of the goods
(Article 16 par. 2, CC)
Lex loci volutantis or lex
2. Capacity to succeed – National law of
loci intentionis – because
decedent
here there is a contract
(Article. 1039)
INTANGIBLE PERSONAL PROPERTY
3. Contracts involving real property which do
INTANGIBLE PERSONAL PROPERTY (CHOSES IN
not deal with the title thereto - The law
ACTION)
intended will be the proper law of the contract
FACTUAL SITUATION POINT OF CONTACT
(lex loci voluntantis or lex loci intentionis)
Recovery of
TANGIBLE PERSONAL PROPERTY
debts or
• GENERAL RULE - Lex rei sitae (Article 16,
involuntary
CC)
assignment of
• EXCEPTIONS: same as those for real property
debts
RULES GOVERNING DIFFERENT KIND OF
(garnishment)
TRANSFERS:
Where debtor may be
1. Voluntary transfers of interests in chattels
effectively served with
(other than assignment for the benefit of
summons (usually the
creditors) – validity and effect of conveyance as
domicile)
between the parties are determined by the local
Voluntary
law of the State which, with respect to the
assignment of
particular issue, has the most significant
debts
relationship to the parties.
Lex loci voluntatis or lex
loci intentionis (proper law
of the contract) Law of the place where the
Taxation of debts Domicile of creditor sale was consummated
Administration of Franchises Law of the place that
debts granted them
Lex situs of assets of the Goodwill of the
debtor (for these assets business &
can be held liable for the taxation thereto
debts) Law of the place where the
Negotiability or business is carried on
non-negotiability Patents,
of an instrument copyrights,
The right embodied in the trademarks, trade
instrument (for example, in names
the case of a Swedish bill In the absence of a treaty,
of exchange, Swedish law they are protected only by
determines its the State that granted
negotiability) them
Validity of NOTE: foreigners may sue
transfer, delivery for infringement of
or negotiation of trademarks and trade
the instrument names in the RP ONLY IF
In general, situs of the Filipinos are granted
instrument at the time of reciprocal concessions in
transfer, delivery or the State of the foreigners
negotiation CHAPTER 13: WILLS, SUCCESSION &
Effect on a ADMINISTRATION OF CONFLICT RULES
corporation of the EXTRINSIC VALIDITY OF WILLS
Law of the place • Deals with the forms and solemnities in the
incorporation making of wills.
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1. If the Testator is a FILIPINO
Civil Law Summer Reviewer a. Executed in Philippines – Philippine law
b. Executed in foreign country –
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i. Lex nationalii
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ii. Lex loci celebrationis (Article 817)
sale of corporate
2. If the Testator is an ALIEN
shares
a. Executed in the Philippines
Effect between
i. Lex nationalii
the parties of the
ii. Lex loci celebrationis (Article 815)
sale of corporate
b. Executed abroad
shares
i. Lex nationalii
Lex loci voluntatis or lex
ii. Lex domicilii
loci intentionis (proper law
iii. RP law (Article 816, CC),
of the contract) – for this is
iv. Lex loci celebrationis (Article 17(1))
really a contract; usually
• NOTE: Joint wills executed by Filipinos
this is the place where the
whether
certificate is delivered)
in the Philippines or abroad, even though
Taxation on the
authorized by the foreign country which they
dividends of
may
corporate shares
have been executed, shall not be valid in the
Law of the place of
Philippines (Art. 819 Civil Code). This prohibition
incorporation
only applies to Filipino nationals. The validity
Taxation on the
of a will as to its form depends upon the
income from the
observance to the law in force at the time it is
sale of corporate
made.
shares
INTRINSIC VALIDITY OF WILLS
• It concerns itself with the order of succession,
the
amount of successional rights, and the intrinsic
validity of the provisions of the will. It is
governed
by the national law of the person whose will is
under consideration in force at the time of
death.
• Capacity to succeed – law of the nation of the
decedent (Art. 1039, Civil Code)
THEORIES ON THE PROPER LAW FOR THE
TRANSMISSION OF SUCCESSIONAL
RIGHTS
1. Unitary or single system – one law governs
the
transmission of BOTH real and personal
property.
2. Split or scission system – one law governs
real
property while another determines successional
rights to personal property.
Caduciary rights – refer to the right of the state
to
claim thru escheat proceedings the properties
within
its territory of a decedent when the decedent is
not
survived by any heirs.
REVOCATION OF WILLS
1. Done in the Philippines - Lex loci actus (of
the
revocation) (Article. 829)
2. Done outside of the Philippines:
a. By a non-domiciliary
i. Lex loci celebrationis (of the making of
the will, NOT revocation)
ii. Lex domicilii (Article 829)
b. By a domiciliary of the RP
i. Lex domicilii (RP law)
ii. Lex loci actus (of the revocation) (Article
17)
PROBATE OF WILLS
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• If the will is not yet probated abroad, Lex fori
of
the RP applies as to the procedural aspects, i.e.,
the will must be fully probated here and due
execution must be shown.
• If the will is already probated abroad, lex fori
of
the RP again applies as to the procedural
aspects. Although it has been probated abroad,
the will must also be probated here, but instead
of proving due execution, generally it is enough
to ask for the enforcement here of the foreign
judgment on the probate abroad.
EXECUTORS AND ADMINISTRATORS
1. The executor is qualified, and the
administrator is
appointed, by the Court of the place where the
deceased was domiciled at the time of death;
or
in the case of a non-domiciliary, where the
assets
or properties of the deceased are found.
2. Their rights, powers and obligations are
coextensive
with the qualifying of the appointing
court – powers may only be exercised within the
territorial jurisdiction of the court concerned.
• NOTE: these rules also apply to principal,
domiciliary, or ancillary administrators &
receivers
even in non-successive cases
CHAPTER 14: RULES ON CONTRACTS
EXTRINSIC VALIDITY OF CONTRACTS
• Governed by lex loci celebrationis
• EXCEPTIONS:
1. Alienation & encumbrance of property - Lex
situs
(Article 16 [1])
2. Consular contracts - Law of the RP (if made in
RP consulates)
• The rule on validation especially becomes
significant in cases involving multi-states
contacts
and there is difficulty determining where exactly
the contract has been celebrated.
INTRINSIC VALIDITY OF CONTRACTS
1. The intrinsic validity of contracts including the
interpretation of the instruments, and amount of
damages for breach is governed by the proper
law of the contract – lex contractus (in the
broad
sense), meaning the lex voluntatis or lex loci
intentionis.
• NOTE: The parties may stipulate that the
contract be governed by a specific law, such will
be recognized (lex loci intentionis) subject to the
limitation that it is not against the law, morals
and
public policy of the forum and it must bear a
substantive relationship to the transaction.
2. If there is no effective choice of law – the
governing the law of the State with the most
substantial connection with the transaction
and
the parties. a party incapacitated to enter into a contract
• The contacts to be taken into account in under his national law later invokes such law to
determining the applicable law to an issue are evade his obligations. PROVIDED: The other
the party entered the contract in good faith.
ff: • The Courts must uphold the Justified
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d. The location of the subject matter of the
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contract
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e. The domicile, residence, nationality, place of
Expectations of the Party, especially in cases
incorporation and place of business of the
where the national laws of the parties are
parties.
incidental or without substantial connection to
VCEPI v. Philippine Gurantee – The
the
Philippines
contract.
has no express Conflict rules regarding the
OTHER THEORIES ON CAPACITY
intrinsic
1. Lex loci celebrationis (defect: this makes
validity of contracts. The SC held that in such
possible the evasion of the national law)
instances, the party may apply the law expressly
2. Lex nationalii (defect: this may impede
agreed upon by the parties or the law intended
commercial transactions)
by
3. Lex loci solutionis (law of the place of
the parties to govern their transactions. The lex
performance) (defect: there may be several
intentionis may be inferred from the nationality of
places of performance
the
4. Prof Minor’s solution:
parties, their residence, place of performance,
• Perfection – lex loci celebrationis
etc. In
• Cause or consideration – lex loci
this case, the parties did not agree upon on
considerations
which
• Performance – lex loci solutionis (defect: this
law shall apply. Hence, the SC applied the law
theory combines the defect of the others)
with
CHOICE OF LAW ISSUES IN CONFLICTS
the most substantial connection to the
CONTRACT CASES
transaction.
1. Choice of Forum Clause
Absent any proof of the law of the proper state,
• Parties may stipulate on the venue of the suit
the
in
SC applied the doctrine of processual
case of litigation concerning the contract.
presumption,
However, a case arising from a contract will be
Rule on Validation – parties entering into a
litigated in the forum chosen by the parties if the
contract that such law is the same as the law of
choice of the forum clause specifically identifies
the forum.
it
upon equal terms intended their agreement to
as the only venue.
be
• When there is no fraud or overreaching, and
binding, and the law will give effect on their
there is no showing that the choice of forum
intent
clause would be unreasonable and unjust, the
whenever it can do so under any law whose
clause must be given effect.
application the parties can be reasonably be
2. Contracts with Arbitration Clause
assumed to have taken into account.
• Many courts apply to arbitration agreements
CAPACITY TO ENTER INTO CONTRACTS
the
• PHILIPPINE RULE: the capacity of the
law of whatever place the parties have
contracting parties is governed by their
designated as governing, thus sustaining their
respective national laws.
agreement to arbitrate.
• EXCEPTION: In alienation and encumbrance
3. Adhesion Contracts
of
• When there is no proof of arbitrariness, abuse
property, the capacity of the contracting parties
of
are governed by the lex situs (Art. 16 (1))
power, or gross negligence, the contract or
• The doctrine of estoppel may be invoked in
stipulation will be enforced.
case
4. Special Contracts (Please Refer to Conflicts
Table 1)
CHAPTER 14: TORTS
• As a general rule, the liability and damages for
torts are governed by Lex loci delicti (law of the
place where the delict was committed)
CHARACTERIZATION OF THE PLACE OF
WRONG (locus delicti)
1. Common law theory – looks to the place
where
the last event necessary to make an actor liable
for an alleged tort occurs (where the injury is
sustained)
2. Civil law theory – view the situs of torts as
same result or when only one state has an
interest in applying its tort law.
b. If there is True Conflict:
i. If Interested Forum – apply the law of
such State which has greater interest in
upholding its tort law.
ii. If Disinterested forum – Dismiss on the
ground of Non Forum Conveniens.
4. Caver’s Principle of Preference – guideline
on
which rules on torts may be applied by States in
absence of statutory provision:
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place where the tortuous act was committed.
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OBLIGATION THEORY
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• The tortuous act gives rise to an obligation,
a. Where the State of Injury provides for higher
which
standard of conduct or financial protection
is transitory and follows the person committing
against injury than the State where the
the tortuous act and may be enforced wherever
tortious act was done, the law of the former
he may be found.
shall govern.
MODERN THEORIES IN TORT LIABILITY
b. Where the State of injury and conduct
1. Doctrine of Elective Concurrence – Either
provides for lower standard of conduct and
the
financial protection than the home State of
laws of the state where the actor engaged in his
the person suffering the injury, the law of the
conduct and where the injury was incurred may
State of conduct and injury shall govern.
be invoked.
c. Where the State in which the defendant has
2. Theory of Most Significant Relationship –
acted has established special controls over
The
conduct of the kind in which defendant was
applicable law shall be the law of the country
engaged, the special controls and benefits
which has the most significant relationship to the
must be applied although the State has no
situation. In determining the state which has the
relationship to the defendant.
most significant relationship, the following
d. Where the law in which the relationship has
factors
its seat imposed higher standard of conduct
are to be taken into account:
or financial protection than the law of the
Pakistan International Airlines v. Ople – The
State of the injury, the former law shall
Supreme Court held that where the relationship
govern.
between the parties is affected with public
CONDITIONS FOR THE ENFORCEMENT OF
interest
TORT
and the multiple and substantive contacts of the
CLAIMS
contracts are with Philippine law, Philippine
• The tort is not penal in character
Courts
• If the enforcement of the tortious liability won’t
and agency may not be ousted of their
contravene our public policy
jurisdiction.
• If our judicial machinery is adequate for such
a. place where the injury occurred
enforcement
b. place of conduct causing the injury
PHILIPPINE RULE
c. domicile, residence, nationality, place of
• Salonga suggests for the following
incorporation and place of business
methodology
d. place where relationship between the parties
in solving Torts Problems in the Phils:
is centered
a. Ascertain and weigh the purpose underlying
3. State-interest Analysis – This principle
the tort law of the forum. If the Tort law of the
provides
Philippines embodies a social or economic
for the following methodology:
policy, then the law of the forum on Torts
a. Determine false or spurious conflicts (i.e.,
shall be applied.
internal laws of the different states have the
b. If the Philippines has no concern or interest
in the application of the internal law and the
other States have interest, apply the law of
such state.
• NOTE: the State where an injury has occurred
has interest in compensating the injured party.
Whereas, the State where the actor has acted
has interest in regulating the conduct of persons
found in its territory.
SPECIAL RULES
1. If the tort is committed aboard a public
vessel,
whether on the high seas or in foreign territorial
waters, the country to which the vessel belongs
is
the locus delicti; the law of the flag is thus the
lex
loci delicti commissi.
2. If the tort takes place aboard a private or
merchant vessel on the high seas , the law of
the flag is likewise the lex loci delicti commissi.
3. If the tort concerns property, whether real or
personal, the lex situs is usually also the lex loci
delicti commissi.
4. Maritime torts
a. if the colliding vessels are of the same state,
or
carry the same flag, said law is the lex loci
delicti commissi
b. if the vessels come from different states,
whose laws however, on the matter are
identical, said laws constitute the lex loci delicti
commissi.
c. if the vessels come from different states with
different laws, the lex loci delicti commissi is
the general maritime law as understood and
applied by the forum where the case is tried.
Le Forest v. Tolman – In order to successfully
maintain an action of tort, the act which is the
cause of the injury and the foundation of the
action must at least be actionable or
punishable by the law of the place in which it
was done, if not also by the law of the place
here redress is so ght
CHAPTER IV: CRIMES
• GENERAL RULE: The essential elements of a
crime and its penalties are generally determined
by the law where the crime was committed
(locus
regit actum).
• EXCEPTIONS:
1. crimes committed by state officials, diplomatic
representatives and officials of recognized
international organizations (based on the theory
of state immunity from suits)
2. crimes committed on board a foreign vessel
even
if within the territorial waters of the coastal state,
as long as the effect of such crime does not
affect the peace and order of the coastal state
3. crimes which, although committed by
Philippine
nationals abroad are punishable under the local
law pursuant to the protective principle of
criminal
jurisdiction (ie.e. Art 2 of the RPC)
THEORIES AS TO WHAT COURT HAS
JURISDICTION
1. Territoriality theory – where the crime was
committed
2. Nationality theory – country which the
criminal
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is citizen or a subject
3. Real theory – any State whose penal code
has
been violated has jurisdiction, where the crime
was committed inside or outside its territory
4. Protective theory – any State whose national
interests may be jeopardized has jurisdiction so
that it may protect itself
5. Cosmopolitan or universality theory –
State
where the criminal is found or which has his
custody has jurisdiction
6. Passive personality theory – the State of
which
the victim is a citizen or subject has jurisdiction
􀂃 NOTE: In the Philippines, we follow the
territoriality theory in general. Hence, our penal
laws apply only to crimes committed within the
country.
􀂃 EXCEPTION: Article 2 RPC, stresses the
protective theory:
a. Offense committed while in a Philippine
vessel or airship.
b. Forging or Counterfeiting any coin currency
note of the Philippines, or any obligation
issued by the government.
c. Introduction into the country of the
abovementioned obligations and securities.
d. While being public officers and employees,
any offense committed in the exercise of their
functions.
e. Crimes against national security and the Law
of the nations as defined in Title 1 Book of
the RPC. CHAPTER XV: BUSINESS ASSOCIATIONS
THE LOCUS DELICTI OF CERTAIN CRIMES CORPORATIONS
Frustrated and FACTUAL
consummated, SITUATION
homicide, POINTS OF CONTACT
murder, Powers and
infanticide & liabilities
parricide General rule: the law of the
Where the victim was injured (not place of incorporation
where the aggressor wielded his Exceptions:
weapon) • For constitutional
Attempted purposes – even if the
homicide, etc. corporation was
Where the intended victim was incorporated in the RP, it
(not where the aggressor was is not deemed a Filipino
situated) – so long as the weapon corporation & therefore
or the bullet either touched him or can’t acquire land,
fell inside the territory where he exploit our natural
was resources, and perate
Bigamy Where the illegal marriage was public utilities unless
performed 60% of capital if Filipino
Theft & owned
robbery • For wartime purposes –
Where the property was we pierce the
unlawfully taken from the victim corporation veil & go to
(not the place to which the the nationality of the
criminal went after the controlling stockholders
commission of the crime) to determine if the
Estafa or corporation is an enemy
swindling thru (CONTROL TEST)
Where the object of the crime was Formation of the
received (not where the false corporation
false (requisites); kind
representation of stocks, transfer
representations were made) of stocks to bind
Conspiracy to the corporation,
commit treason, issuance, amount
rebellion, or • Law of the place of
sedition incorporation
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Where the conspiracy was formed
& legality &
(not where the overt act of
dividends, powers
treason, rebellion or sedition was
& duties of
committed)
members,
Libel Where published or circulated
stockholders and
Continuing
officers
crime
Validity of
Any place where the offense
corporate acts &
begins, exists or continues
contracts
Complex crime Any place where any of the
(including ultra
essential elements of the crime
vires acts)
took place
• Law of the place of 3. Law of the place of exploitation
incorporation & law of (exploitation
the place of performance centre or siege d’ exploitation)
(the act or contract must WHEN DOES THE PERSONAL LAW OF THE
be authorized by BOTH CORPORATION GOVERNS?
laws) 1. requisites for formation of the corporation and
Right to sue & its
amenability to legal character
court processes & 2. The capacity and powers of the corporation:
suits against it Note
• Lex fori however that two questions should be asked in
Manner & effect determining the legal effect of an act of a
of dissolution corporation: First, is the corporation authorized
• Law of the place of by its charter to do the particular act? Second,
incorporation provided is
that the public policy of this act permitted by the law of the place where
the forum is not militated the act is done?
against 3. Kinds of stocks allowed and transfer of stocks
Domicile • If not fixed by the law in
creating or recognizing a way that would be binding on the corporation
the corporation or by any 4. Issuance, amount, and legality of dividends;
other provision – the 5. The internal organization of the corporate
domicile is where it is enterprise, the rights and liabilities of
legal representation is shareholders, members, directors, officers, their
established or where it relations inter se, and stockholders’ participation
exercises its principal in the management and in the profits.
functions (Article. 15) 6. Alteration or modification of the charter and
Receivers the
(appointment & dissolution of the corporation.
powers) PHILIPPINE JURISDICTION OVER FOREIGN
• Principal receiver is CORPORATIONS
appointed by the courts • Consent doctrine – a foreign corporation will
of the State of be
incorporation; ancillary recognized and will be allowed to transact
receivers, by the courts business in any state which gives its consent.
of any State where the (Secs. 125, 126, 127 and 128 Corp. Code)
corporation has assets • NOTE: all foreign corporations lawfully doing
(authority is COEXTENSIVE) business here in the Philippines shall be bound
w/ the by all laws, rules and regulations applicable to
authority of the domestic corporations EXCEPT provisions for
appointing court the
THEORIES ON THE PERSONAL AND/OR creation, formation, organization or dissolution of
GOVERNING LAW OF CORPORATIONS: corporations or those which fix the relations and
1. Law of the place of incorporation – this is liabilities or duties of the stockholders, members
generally the rule being adhered to by the or officers of the corporation to each other.
Philippines. RIGHT TO BRING A SUIT
• EXCEPTIONS: • GENERAL RULE: if a corporation doing
a. Exploration and Exploitation of Natural business in the country is not duly licensed or
resources authorized to transact business in the
b. Media Philippines,
c. Wartime Rule it cannot be permitted to maintain or intervene in
d. Piercing of Corporate Veil any action, suit or proceeding in any court or
2. Law of the place or center of management administrative agency of the Philippines BUT it
(center for administration or siege social) (center can be sued before any court or administrative
office principle) tribunals on a valid cause (Sec. 133 of Corp
Code).
• EXCEPTIONS: (Article 15 of the Code
1. Isolated transactions of Commerce)
2. action to protect trademark, trade name, (Subject to the
goodwill, exceptions given
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in the RP; validity &
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commercial
patent or for unfair competition
transaction; & the
3. agreements fully transacted outside the
jurisdiction of the
Philippines
court
4. petition filed is merely a corollary defense in a
RP law (law of the
suit against it
place where branches
5. In case of Estoppel. A person who enters into
were created) (Article
a
15, Code of
contract with a foreign corporation and receives
Commerce)
benefits from the contract is estopped from
Dissolution, winding
setting up the failure of said corporation to
up, & termination of
comply with the requirements for doing
branches in the RP
business,
RP law (Article 15,
in order to avoid liability.
Code of Commerce)
MULTI-NATIONAL CORPORATIONS
Domicile If not fixed by the law
• Cluster of corporations of diverse nationalities
creating or recognizing
joined together by ties of common ownership
the partnership or by
and
any other provision –
responsive to a common management strategy.
the domicile is where it
• Jurisdiction over a local counterpart may
is legal representation
amount
is established or
to jurisdiction on the parent company if the local
where it exercises its
counterpart is only a branch and is without
principal functions
separate juridical personality from the mother
(Article. 15)
company and when such local counterpart is but
A corporation is “doing business” when it is
a conduit or alter-ego of the parent company. continuing the body or substance of the business
• However, if the local counterpart is a subsidiary or
with an entirely distinct personality, jurisdiction enterprise for which it was organized. The term
over the local counter-part is not jurisdiction over implies a continuity of commercial dealings and
the parent company. arrangements and contemplates, to that extent, the
• NOTE: A subsidiary is one which is performance of acts and works or the exercise of
incorporated some of the functions normally incident to, and in
separately from the mother company, thus progressive prosecution of, the purpose and
obtaining its own juridical personality. objective of its organization.
PARTNERSHIPS
FACTUAL SITUATION POINTS OF CONTACT
The existence or nonexistence
of legal
personality of the firm;
the capacity to
contract; liability of
the firm & the partners
to 3rd persons
The personal law of
the partnership, i.e.,
the law of the place
where it was created