VII.

Nature of Conflicts Rule and the Problem of Characterization

a. Distinguish international law from municipal law.
Under the dualist theory, international law and municipal law are distinct and in case of conflict,
municipal law prevails. International law functions between States while municipal law between individuals,
with sovereign control. International law cannot address itself to individuals, but only to States.

Under the monists theory, international law and municipal law are one and the same and in case of
conflict, International law prevails. Municipal law finds its source in international law; international law
regulates individual conduct. Hence, there is only one single system of which all type of laws are simply
branches.

As a rule, international always prevails in the international forum not because it is superior, but
because it is the only law that applies.

b. Distinguish domestic or internal rules from private international law or conflicts of laws.
Domestic or Internal rules is municipal in character while private international law or conflicts of laws, from
the term itself is international in character. The former deals with by private individuals including private
trasactions involving a foreign element, while the latter delals with sovereign states and other entities
possessing international personality. Domestic or internal rules involves private transactions between private
individuals which conflicts of laws involve transactions generally affected by the public interest, those in
general are of interest only to sovereign states. The former resorts to municipal tribunals for remedies and
sanctions while the latter may be peaceful or forcible; peaceful as it includes diplomatic negotiation and the
like, and forcible as it includes severance of diplomatic relations.

c. What is the fundamental difference between ordinary internal rules and conflicts rules?
Ordinary internal rules authorize, command or prohibit a certain mode of conduct. Example: Art.
796. All persons who are not expressly prohibited by law may make a will. Conflicts rules decide only which
law or jurisdiction will give the final solution to the question. Example: Real property as well as personal
property is subject to the law of the country where it is situated.

d. What is meant by points of contact? What are the important points of contact in a conflicts
case?
Point of contact is an essential element of conflicts rules prescribes the municipal law to which the
question should be referred or connected. The important points of contact are: The nationality of a person,
his place of sojourn, or his origin; the seat of a legal or juridical person, such as a Corporation; lex situs is
decisive when real rights are involved; the lex loci actus is particularly important in contracts and torts; the
place where an act is intended to come into effect; the lex loci intentionis;

e. Explain the problem of characterization.

Characterization or the doctrine of qualification is the process necessary to determine under what
category a certain set of facts or rules fall before a choice of law can be made. It is the process of deciding
whether or not the facts relate to the kind of question specified in a conflicts rule.

f. What are the three (3) stages of characterization?

The three stages are: (1) to assemble, gather, and analyze the facts of the case and decide under
what cause of action; (2) to decide what law is applicable; (3) then formulate the theory of the case.

g. What are the steps in determining the applicable law in a problem involving a foreign element?
As a rule, the choice between a substantive foreign law and the substantive local law of the country
where the case is filed, as it is settled that the procedural steps and requirements of the law of the latter,
relative to the filing and enforcement of the cause of action are followed. The resolution of the problem
requires the application of rules of conflict of laws.

h. Explain the concept of borrowing statute.

A borrowing statute is a statute which directs the court of the forum to apply the foreign statute to
the pending claims based on a foreign law. One of which is Section 48 of the Code of Civil Procedure, which
is still in force and which provides that if by the law of the state or country where the cause of action arose,
the action is barred, it is also barred in the Philippines.

VIII. Nationality and Domicile

a. Distinguish nationality from domicile.
Nationality refers to membership in a political community. In the Conflict of Laws, the words
nationals and citizens are used interchangeably. Domicile is defined as that place where a man has his true,
fixed and permanent home and principal establishment. It is that place which, whenever he is absent, he
has the intention of returning. In the Philippines, it has been defined as the place where a person, actually
or constructively, has his permanent home, where he, no matter where he may be found at any given time,
 eventually intends to return. A person may have his domicile at one place but may reside at some other
place. Also, a person may also have several residences but only one domicile.

b. What is the importance of nationality and domicile in conflict of laws?

It is the nationality or citizenship of the individual that regulates his civil status, capacity, condition,
his family rights and duties, laws on succession and capacity to succeed. According to the Philippine Supreme
Court, the nationality law theory is a conflict of laws theory by virtue of which jurisdiction over the particular
subject matter affecting a person such as status of a natural person, is determined by the latter’s nationality.

Domicile fixes the jurisdiction of the taxing authorities. It also determines where a person may
exercise the privilege of voting and other legal rights and privileges. Article 50 of the Civil Code provides that
for the exercise of civil rights and the fulfillment of civil obligations, the domicile of natural persons is the
place of their habitual residence.

IX. Personal Law

a. What is the system of personal law?
Personal law allows the courts to exercise jurisdiction over the person or determine the governing
choice of law rule on the specific situation involving such person.

b. In the Philippines, what is the scope or coverage of personal law?

His nationality serves as a permanent connection between the individual and the state. His personal
law regulates his civil status and condition, his family rights and duties, the intrinsic validity of his will and
the rights of succession to his properties.

c. What is the renvoi doctrine?

Doctrine whereby a jural matter is presented which the conflict of laws rules of the forum refer to a
foreign law which in turn, refers the matter back to the law of the forum or a third state. When reference is
made back to the law of the forum, this is said to be “remission” while reference to a third state is called
“transmission.”

X. Marriage and Family Relations

a. What are the two principal problems regarding marriage in the field of COL?
- The intrinsic and extrinsic validity of the marriage and its subsequent divorce.
- The consequences of marriage such as: property rights, obligations, paternity and filiation, etc.

b. What law governs the formal validity of marriage involving a foreign element?
Philippines, the law of the place where the marriage is celebrated governs the matter of formal
validity, irrespective of whether the marriage is concluded within or outside the forum. In short, the maxim
locus regit actum or the principle that “the act is governed by the law of the place where it is done” is
applied compulsorily; the law of the place of celebration, the lex loci celebrationis, is solely decisive.

c. What law governs the substantive validity of marriage involving a foreign element?

Between Filipinos Lex loci celebrationis is without

Celebrated prejudice to the exceptions under
Abroad Articles 25, 35 (1, 4, 5 & 6), 36, 37 &
38 of the Family Code (bigamous &
incestuous marriages) & consular
marriages
Between Foreigners Lex loci celebrationis EXCEPT  if the
marriage is:
1. Highly immoral (like
bigamous/ polygamous
marriages)
2. Universally considered
incestuous (between brother-
sister, and ascendants-
descendants)
Mixed Apply 1 (b) to uphold validity of
marriage
Between Foreigners National law (Article 21, FC)
Celebrated in RP PROVIDED the marriage is not highly
immoral or universally considered
incestuous)
Mixed National law of Filipino (otherwise
public policy may be militated against)
Marriage by proxy Lex loci celebrationis (with prejudice
 (NOTE: a marriage by to the foregoing rules)
proxy is considered
celebrated where the
proxy appears

XI. Property
a. What law governs the characterization of property into movable involving a foreign element?
“Real property as well as personal property is subject to the law of the country where it is situated.”
This replaces the rule found in the Spanish Civil Code that states that real property is governed by lex situs
and personal property is governed by the national law of the owner.

b. In property, what is the scope of lex situs rule?

Lex situs means the law of the place where a thing is situated. In actions relating to recovery of
land, the rule is that the action is governed by the law of the place where the land is located.

c. In property, what are the exceptions to the lex situs rule?

i. Firstly, the lex situs rule does not apply when it is the rights and liabilities of the parties to a contract
where the subject matter of the contract is an immovable that is at issue, and not the effect of the
transaction upon the title to the land. Instead, it is the law that regulates the contract itself that will
govern, though the land itself is in another state.
ii. Secondly, although the lex situs rule determines what law governs the validity and effect of a mortgage
upon immovable property, the validity and effect obligation which that mortgage secures are governed
by principles applicable to contracts generally.
iii. A third exception is the validity of a contract to transfer which is determined by the proper law of the
contract, in contrast with the validity of a transfer of land which is determined by lex rei sitae.
iv. Finally, the last exception, which has its origin in civil law codes that adopted Mancini’s nationality
principle even with respect to problems of succession, is based upon two codal provisions. Article 16,
paragraph 2 of the Civil Code of the Philippines, states that whether succession is testate or intestate,
whether the property is moveable or immovable, and wherever the property may be located, it is the
national law of the person whose succession is in question, not the lex situs, that determines the order
of succession, the amount of successional rights, and the intrinsic validity of testamentary provisions.
Under Article 1039 of the Civil Code, the capacity to succeed is also governed by the national law of the
deceased.

XII. Succession
a. What laws govern the Philippines conflicts rule on succession?
In intestate and testamentary successions, the national law of the decedent governs the order of
succession, amount of successional rights and intrinsic validity of testamentary provisions, whatever may be the
nature of the property and regardless of the country wherein said property may be found, as well as capacity to
succeed. The rights to the succession of a person are deemed transmitted from the moment of death.

b. May a will that has been duly probated in a foreign country, according to the laws of such
country be allows, filed and recorded before Philippine courts?
Under Article 838 of the Civil Code, no will shall pass real or personal property unless it is proved and
allowed with the Rules of Court. A will may be probated outside the Philippines under Rule 77 of the Rules of
Court. When the will is allowed, it will have the same effect as if originally proved and allowed in the Philippine
court.A will probated outside the Philippines may be reprobated in the Philippines. The evidence necessary of
the reprobate or allowance in the Philippines are: (1) the due execution of the will in accordance with the
foreign law; (2) the testator has his domicile in the foreign country and not in the Philippines; (3) the will has
been admitted to probate in such country; (4) the fact that the foreign tribunal is a probate court; (5) the laws
of a foreign country on probate and allowance of wills. Philippine courts cannot take judicial notice of the
foreign laws upon which the probate of a foreign country was done . In the absence of proof as to the probate
law and procedure of a foreign country, it is presumed that the same is similar to that of the Philippines, in
which case the validity of the foreign will may have to be decided in accordance with Philippine law.

XIII. Contracts
a. In a conflicts case, what law governs the formalities of contracts?
In our country and in the absence of a valid agreement as to the choice of law by the parties, Article
17 of the Civil Code will apply.
The exception to the lex loci contractus is the case of a contract affecting land or title thereto, where
the test is the lex rei sitae, the law of the place where the property is located, which governs the forms,
solemnities and validity of such contract, including the capacity of the person to take the land, and which
obtains in the Philippines

b. In a conflicts case, what law governs capacity to enter into contracts?

The rule followed nowadays is that the law that should govern a contract is the law of the state with
which the contract has its more significant relationship.
 In the Philippines one’s capacity to enter into a contract is regulated by Article 15 of the Civil Code
which states to wit: “Laws relating to family rights and duties or to status, condition and legal capacity of
persons are binding upon citizens of the Philippines even though living abroad.”

c. In a conflicts case, what law governs the essential or intrinsic validity of contracts?
Article 16 provides that the intrinsic validity of a will is governed by the national law of the
Decedent. A ruling by the Supreme Court also states that the law of the place where the contract is
executed also governs its intrinsic validity. The doctrine of lex loci contractus states that, as a general rule,
the law of the place where a contract is made or entered into governs with respect to its nature and validity,
obligation and interpretation.

d. Are parties to a contract free to stipulate as to the applicable foreign law that shall govern any
dispute arising from the contract?
The parties to a contract may select the law by which it is to be governed. In such a case, the
foreign law is adopted as a "system" to regulate the relations of the parties, including questions of their
capacity to enter into the contract, the formalities to be observed by them, matters of performance, and so
forth.

XIV Torts and Crimes

a. What are the modern theories and rules on tort liability?
i. Doctrine of Elective Concurrence
In this theory, it is held that both the state where the actor engaged in his conduct and the place of injury
has jurisdiction over the case as it can be said that the said tort was committed in both places.
ii. State of the Most Significant Relationship
To apply this rule, the state with the most significant relationship to the case at hand must be determined.
Factors to be considered
a) the place where the injury occurred
b) the place where the conduct causing the injury occurred
c) the domicile, residence, nationality, place of incorporation and place of business of the
parties, and
d) the place where the relationship, or any, between the parties centered.
iii. State-Interest Analysis
All relevant and governmental concerns of a state in an issue, not only as a sovereign in a set of facts or an
entity but as a repository of justice, must be considered by a court of law in determining which law to apply.

b. What law governs crimes? What are the exceptions?

We follow the territoriality theory in general wherein the law where the crime committed governs. Exception
is Article 2 of the Revised Penal Code which stresses the protective theory.

XV Recognition and Enforcement of Foreign Judgment and Foreign Arbitral Awards

a. Distinguish between recognition and enforcement of judgment.
Recognition means that a foreign judgment is given the same effect that it has in the State where it
was rendered with respect to the parties, the subject matter and the issues involved. The extension to
another State of the res judicata effect of a judgment obtained in one State.

In enforcement of judgment, in addition to the recognition of a foreign judgment, affirmative relief

is given to a partyentitled to the same because of such judgment.

b. What are the requisites for recognition and enforcement of a foreign judgment in the
Philippines?
For recognition and enforcement to properly operate, there has to be a showing first that the grounds
for its exclusion do not exist. Therefore, the adverse party must be given an opportunity to refute the
judgment by the grounds provided for in law or jurisprudence whether such foreign judgment is recognized
or enforced.

c. What is the policy of preclusion?

Policy of preclusion means that one trial of an issue is enough. Judgments should be enforced unless
there are reasons for denying the enforcement such as lack of jurisdiction, irregularity in the proceedings,
fraud, etc.

Addendum:
1. What is the principle of extraterritoriality?
As a general rule, Philippine laws have no extraterritorial effects in another country; for the reason
that one sovereign country is independent of another.
Exceptions:
• When our law provides respect to other countries with respect to its citizens and nationals
 • When our country enters into a treaty with another country.
• Congressional legislations adopting foreign law to municipal law of the land.
Extraterritorial application of a foreign law allowed when the country gives consent (implied or
expressed).
Exception: When the foreign law is against public policy and order.

2. What are the three (3) stages of characterization?

The three stages are: (1) to assemble, gather, and analyze the facts of the case and decide under
what cause of action; (2) to decide what law is applicable; (3) then formulate the theory of the case.

3. What are the steps in determining the applicable law in a problem involving a foreign element?
As a rule, the choice between a substantive foreign law and the substantive local law of the country
where the case is filed, as it is settled that the procedural steps and requirements of the law of the latter,
relative to the filing and enforcement of the cause of action are followed. The resolution of the problem
requires the application of rules of conflict of laws.

4. What are the choice of law theories?

Center of Gravity Doctrine or the Most Significant Relationship Theory;
Doctrine of Renvoi or the Table Tennis Theory;
Lex Fori or the Law of the Forum/court;
Other theories in the choice of law are: the German rule of elective concurrence; the State-interest analysis;
and the Caver's Principle of Preference

5. What are the three (3) instances when internal or domestic law is applied in a COL case?

iii. Internal law will be applied and a foreign law will not if it contravenes prohibitive
law or public policy of the forum. Article 17, paragraph 3, of the Civil Code.

Addendum:
a. What are the bases of jurisdiction?
1. Territoriality Principle - criminal Jurisdiction is determined by reference to the place where the offense is
committed.

2. Nationality Principle - it is the recognized rule that a State has the power to enact criminal laws which apply
even to violations thereof committed by its citizens in other states.

3. Passive Personality Principle - The determination of jurisdiction is made by the reference to the nationality
or national character of the person injured by the offense.