PHILIPPINE CONFLICT OF LAWS (PARAS)

CHAPTER I

PRELIMINARY CONSIDERATION ii. Administrative agencies decide preliminarily a given

controversy involving a foreign factor such as:
DEFINITION OF CONFLICT OF LAWS
a) Ministry of Foreign Affairs
 That part of the Municipal law of a State which directs its b) Commission on Immigration and
courts and administrative agencies, when confronted with a Deportation
legal problem involving foreign element, whether or not c) Securities and Exchange Commission
they should apply a foreign law or foreign laws.
3. There is a legal problem involving a foreign element;
4 ELEMENTS

1. Conflict of law is part of the municipal law of a state; i. A foreign element has to be present before the
matter can be considered as a conflicts problem.
i. Since every state has its own municipal law, it ii. Private International law comes into operation,
follows quite naturally that each state has also its whenever the Court has a suit before it that
own conflict of laws. contains a foreign element
ii. It is NOT international in character
iii. PHILIPPINE CONFLICT OF LAWS- part of the 4. Finally, there is either an application or a non-application of
municipal law of the Philippines which directs its a foreign law or foreign laws.
courts and administrative agencies, when
confronted with a legal problem involving a foreign i. When confronted with a conflicts problem, the
element, whether or not they should apply a foreign solution will have to be found in the application of
law or foreign laws. either the LOCAL law or FOREIGN law
ii. The very essence of a sovereign state is that it has
2. There is a directive to the courts and administrative no superior.
agencies; iii. Each sovereign state is supreme within its own
limits
i. It is the judicial tribunals of a country that iv. When effect is given to a foreign law in a territory, it
ultimately are called upon to decide or resolve is only because the municipal law of that state
“conflicts” problems. temporarily abdicates its supreme authority in favor
of the foreign law, which for the time being with

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 reference to that particular matter, becomes itself The three specific aims of the functions are:
by will of the state, its municipal law.
a) Determination of which country has jurisdiction;
IMPORTANCE OF THE SUBJECT b) The applicability to a particular case of either the local or
the foreign law;
 To adjust conflicting rights in international, mercantile and
c) The determination of the force, validity and effectiveness of
corporate transactions
a foreign judgement
 To solve personal, family, property, and successional,
contractual probes, possessed of facts or elements Three questions, present themselves namely:
operating in two or more states
I. Jurisdiction
BASIC CAUSE FOR CONFLICTS PROBLEMS II. Choice of Law
III. Applicability of a foreign judgement.
 Variance in the municipal laws of the countries involve
 There is a multiplicity of governments with separate legal  Of the three the most important is the choice of law
systems
HOW CONFLICT OF LAWS IS OBSERVED
EXAMPLES OF DIVERSITY IN LAWS AND INTERPRETATIONS
1. States may comply faithfully with its conflict f laws
1. In the Matter of Wills a. States must insofar as practicable try to harmonize
2. In the Matter of Marriage their own rules of equity with the legislation and
3. In the Mater of Divorce jurisprudence in other lands
4. In the matter of Income Tax Exemptions 2. Private individuals may in their own way abide by our
SCOPE OF FUNCTIONS OF CONFLICT OF LAWS conflict rules by observing them and by complying with the
judicial decisions on the subject
Three fold function:
WHY CONFLICT OF LAWS IS OBSERVED
1. To prescribe the conditions under which the court is
competent to entertain such suit; 1. States must of necessity observe the subject because it is
2. To determine for each class of cases the particular territorial part of their own municipal law
system of law by reference tow which the rights of the 2. Individual citizen observe it because of fear of municipal
parties must be ascertained; sanctions
3. To specify the circumstances in which a foreign judgement
can be recognize as decisive of the question in dispute.

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NAMES GIVEN TO THE SUBJECT personality
Transactions Transactions Transactions
2 Different schools of thought give various appellation to the are private involved are entered
subject: ones into which
1. Stresses the “International” angle. Examples: Private between generally
private affect public
international law, Civil international law, extra territorial
individuals interest
law, private law of nations, private law of foreigners, the
Remedy is to Remedies Remedies
extraterritorial recognition of rights, the law of strangers,
resort to and may be:
the theory of the extraterritorial authority of laws. municipal Sanctions (1) Peaceful
tribunals such as
2. Stresses the “Conflict” angle. Example: Conflict of Laws, diplomatic
Collision of Laws, Conflict of Statutes, Choice of Law negotiations,
arbitration,
Defects in the name CONFLICT OF LAWS:
judicial
1. It stresses the conflict whereas the principal objective of the settlement
subject is precisely to resolve or eliminate said conflict by ICJ
2. Conflict may exist only in the mind of the judge OR
3. There may be conflict of jurisdiction
(2) Forcible
CONFLICT OF LAW VS. LAW OF NATIONS such as
severance of
CONFLICT OF BASIS LAW OF diplomatic
LAWS NATIONS relations,
Municipal in Nature International reprisals,
character in character embargo,
boycott, war
Dealt by Persons Parties
private involved involved are
individual sovereign 2 THEORIES:
states and
1. Dualist School of Thought
other entities
possessed of  Believes that the two subjects are world apart, at
international least insofar as the above stated distinctions are
concerned.

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 2. Monist School of Thought CHAPTER II
 Private and Public International Law are in essence
WHAT THE TRIBUNALS OF THE FORUM MUST DO
identical for both of them manifest a single concept
of law, ultimately addressed to the same individual. Whenever a conflict problem presents itself before a tribunal of the
 The adherents of this school maintain, can act only forum, the court is primarily confronted with the question of
through individuals jurisdiction. When a court is without jurisdiction, it has to dismiss
the case. Any judgment rendered without or in excess of jurisdiction
SOURCES OF CONFLICT OF LAWS
is null and void, in view of the lack of due process.
1. Direct
When a tribunal possesses jurisdiction, it may:
a. Constitution
b. Codifications 1. Refuse to assume jurisdiction on the ground ”forum non
c. Special laws conveniens,” or
d. Treaties and conventions 2. Assume jurisdiction, in which case it may either:
e. Judicial decisions a. Apply internal law of the forum (lex fori); or
f. International customs b. Apply the proper foreign law (lex causae)
 Lex Situs
 Lex Loci Celebrationis JURISDICTION
 Lex Nationalii or Lex Domicilii
- From Latin “jus dicere” which means the “right to speak”
 Territoriality Principle
- Is the authority of a tribunal to hear and decide a case; also
 Principle of Generality
includes the power to enforce any judgment it may render
2. Indirect
thereon.
a. Natural Moral Law
- In the realm of Conflicts of Laws, it has essentially the same
 It is a rule of human conduct implanted by
God in our nature and in our conscience, definition with the added element of possible enforceability
urging us to do whatever is right and avoid in foreign states, subject of course to the rights of said
whatever is evil states.
b. Works of Writers - Also the power of the state to create legal interests which
other states will recognize and enforce.

Ultimately, it is the court of the forum which decides whether or not

jurisdiction, considering the attendant circumstances, is present.

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Note: Law of the forum – yardstick for the presence or absence of  Personal Service – handing copy to the
jurisdiction. defendant in person or if he refuses, by
tendering it to him.
KINDS OF JURISDICTION
 Substituted Service – by leaving copies of
1. JURISDICTION OVER THE SUBJECT MATTER the summons on the defendant’s house or
 Conferred by law and defined as the authority of a residence with some person of suitable age
court to hear and decide cases of general class to and discretion residing therein, or by
which the proceedings in question belong. leaving copies on defendant’s office or
 Only the law confers it, and only the law may regular place of business with some
change it. competent person in charge thereof.
 In Philippines, law of jurisdiction may be found in
the Constitution and Judiciary Act of 1948 as Note: Summons by Publication – Action in rem or
quasi in rem, or involves personal status of the
amended by BP 129.
plaintiff.
 It is the allegations in the petition or complaint,
read together with the proper jurisdictional law, 3. JURISDICTION OVER THE REM
that will confer jurisdiction in the court.  Over the subject matter in controversy, regardless
of the person who may be interested thereon.
2. JURISDICTION OVER THE PERSON  May be acquired by coercive seizure of the property
 Power of the court to render judgment that will be by attachment proceedings.
binding on the parties involved: the plaintiff and
defendant. HOW SERVICE IS MADE ON A PRIVATE FOREIGN CORPORATION
 Jurisdiction on the plaintiff - acquired from the  Through its resident agent designated in accordance
moment he institutes action by the proper pleading. with law for that purpose or if there be no such
 Jurisdiction on the defendant: agent, the government official designated by law or
a) Voluntary appearance (Rule 14, Sec. 23, ROC) any of its officers or agents within the Philippines.
 Exception: If the purpose is to question the  But the corporation must be doing business in the
jurisdiction of the court over his person. Philippines for the said rule to apply.
b) Personal/Substituted service of summons (Rule
14, Sec. 7 & 8, ROC)

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EFFECT OF VITIATED PERSONAL SERVICE OF SUMMONS sovereign’s pleasure. But if the party submits to the
jurisdiction in whatever form may be required, we
1. Vitiation by Fraud
dispense with the necessity of maintaining the
 If through the initiative or at the instigation of physical power, and attribute the same force to the
plaintiff, court does NOT acquire jurisdiction over judgment or decree whether the party remains
the person of such defendant. within the jurisdiction or not.

2. Vitiation by Force REFUSAL TO ASSUME JURISDICTION

 If the force is LEGAL, jurisdiction may be properly Basis: Forum non conveniens.
acquired.
The inconvenience may be manifested in the following ways:
 If the force is ILLEGAL, jurisdiction is not obtained.
1. The evidence and the witnesses may not be readily
REPERCUSSIONS OF SUBMISSION TO JURISDICTION
available;
a. On the part of the plaintiff 2. Court dockets of the forum may already be clogged to
 He puts the judicial machinery into action and permit additional cases;
therefore now subject to any set-offs, 3. Evils of forum-shopping ought to be curbed;
counterclaims, cross-claim, etc. that the forum may 4. Forum has no particular interest in the case;
provide as proper elements of a defense. 5. Other courts are open.

NOTE: This doctrine should generally apply only if the defendant is a

b. On the part of the defendant
corporation. If the defendant is an individual, it may be difficult for
 Subject to its jurisdiction as to all subsequent the convenient proper forum to acquire jurisdiction over him.
matters in the same suit such as appeals.
 Even if the defendant leaves the state of forum APPLICATION OF THE PRINCIPLE
prior to the final determination of the suit, 1. If neither the plaintiff, nor the defendant, nor the cause of
jurisdiction over him that has been previously action is related to the forum, the action will not be heard.
acquired continues. 2. Where the suit is between aliens or non-residents or where
for kindred reason, the litigation can more appropriately be
REASON: Ordinary jurisdiction over a person is conducted in foreign tribunal.
based on the power of the sovereign asserting it to
seize the person and imprison him to await the

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APPLICATION OF THE INTERNAL OR DOMESTIC LAW i. An official publication thereof; or
ii. A copy attested by the officer having the legal
Three instances:
custody of the record, or by his deputy and
1. When the law of the forum EXPRESSLY so provide in its accompanied with a certificate that such person
conflicts rules; has custody.

Instances: b. If foreign law is UNWRITTEN LAW as customs or

a. Art 16, par 2, Civil Code; traditions, it may be proved by:
b. If a will executed by an alien abroad is revoked in our i. The oral testimony of expert witness;
country, the revocation must comply with the ii. By printed or published books of reports of
formalities of Philippine law (Art 829, Civil Code); decisions of the country involved, if proved to
c. Matrimonial Property Relations, Art, 80 of Family Code; be commonly admitted by the courts.
This rule will not apply:
i. Both spouses are alien; 3. When the cases involves any of the exceptions to the
ii. Extrinsic validity of contracts affecting property not application of the proper foreign law (exceptions to
situated in the Phil and executed in the country where comity):
the property is located; and
iii. Extrinsic validity of contracts entered into Phil but
a. When the foreign law, judgment or contract is contrary
affecting property situated in foreign country whose
to a sound and established public policy of the forum;
laws required different formalities for its extrinsic
validity.  Art 17, par 3, Civil Code
 Public policy – manifest will of state, that
2. When the proper foreign law has NOT been properly which desires on account of its own
pleaded and proved; fundamental principles of justice, its own
conception of morals, and its deep-rooted
Doctrine of Processual Presumption – foreign law is traditions for the common weal.
presumed to be the same as the local or domestic law if it is  When is foreign law, judgment or contract
not properly pleaded and proved. contrary to our public policy?
ANSWER: When we already have a conflicts
Proof of Foreign Law: rule on the matter
a. If foreign law is WRITTEN LAW, it may be proved by:

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b. When the foreign law, judgment or contract, is contrary  If the purpose of the “penalty” is to remedy
to almost universally conceded principles of morality an act of injustice against the general
(contra bonus mores); public.
 Man, being a rational animal, has two e. When the case involves purely fiscal or administrative
distinctive features: the physical and the matters;
moral. In case of conflict, moral nature must f. When the application of the foreign law, judgment or
prevail. contract, may work undeniable injustice to the citizens
or residents of the forum;
c. When the foreign law, judgment or contract involves g. When the application of the foreign law, judgment or
procedural matters; contract, may work against the vital interests and
national security of the state of the forum;
Basis: There are no vested rights in the rules of h. When the case involves real or personal property
procedure, one must take procedural formalities of a situated in the forum.
forum in the state in which he finds them, otherwise, he
would arrogate unto himself the herculean task of
remarking the forum’s judicial machinery to suit his
CHAPTER III
particular whims.
THEORIES ON WHY THE FOREIGN LAW MAY IN SOME CASES BE
The following are governed by the internal rules of the GIVEN EFFECT
forum:
i. Forms of the proper action
ii. Joinder and misjoinder of parties When a forum assumes jurisdiction over a conflict case, it will apply
iii. Admissibility and probable effect of evidence either the internal law or the proper foreign law. A questions arises:
iv. Certain defenses why should we ever apply the foreign law? Is not our internal law
v. Periods within which to appeal sufficient?
vi. Cost of the suit The following theories attempt to give the answer:
vii. Various modes of discovery
1. The Theory of Comity
d. When the case involve penal laws, contracts,  We apply foreign laws because of its convenience
judgments; and because we want to give protection to our
 Refers to criminal statutes and judgments; citizens, residents, and transients in our land.

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 2. The Theory of Vested Rights 2. Assumes a desire to show courtesy to other states.
 We seek to enforce not the foreign law itself but the 3. Leaves the application of the foreign law to the discretion of
rights that have been vested under such foreign law the forum.
3. The Theory of Local Laws
Justification:
 We apply foreign law not because it is foreign, but
because our own laws, by applying similar rules, 1. No law has any effect of its own force, beyond the limits of
require us to do so. the sovereignty from which its authority is derived.
 It is as if the foreign law has become part and parcel  Thus, only by the “comity of nations” may we allow
of our own local law the enforcement in our country of foreign laws and
4. The Theory of Harmony of Laws judgements.
 We have to apply the foreign laws so that wherever 2. Recognition of foreign laws cannot be claimed as a right, but
a case is decided, that is, irrespective of the forum, only as a favor or courtesy.
the solution should be approximately the same
Kinds:
5. The Theory of Justice
 Purpose of all laws is the dispensing of justice and if 1. Comity based on reciprocity
this can be attained in many cases by applying the  If the laws and judgments of the forum are
proper foreign law, we must do so. recognized in a foreign state, the forum in turn will
recognize the laws and judgments emanating from
THE THEORY OF COMITY
said foreign state
Definition: 2. Comity based on persuasiveness of a foreign judgement
 If the forum is persuaded that a foreign judgment is
 In the legal sense, it is neither a matter of absolute
meritorious and has been rendered by a court of
obligation on the one hand, nor of mere courtesy and
competent jurisdiction, it will not hesitate to
goodwill upon the other.
enforce that foreign judgments in the forum even if
 It is the recognition which one nation allows within its
the foreign forum does not reciprocate
territory, to the legislative executive, or judicial acts of
another nation, having due regard both to international THEORY OF VESTED RIGHTS
duty and convenience, and to rights of its own citizens, of
Definition:
other persons who are under the protection of its laws.
 We seek to enforce no the foreign law or the foreign
Defects:
judgement itself, but simply the vested rights that have
1. Presupposes the existence of an international duty. been vested under such foreign law or judgement.

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Justification: THEORY OF LOCAL LAW

 Principle of civilized law that rights once vested under the  When we apply foreign law not because it is foreign, but
law continue until destroyed or cut off by law, and that such because our own rules by applying similar rules require us
rights are recognized and enforced in one state though they to do so, hence, it is as if the foreign law has become part
have come into being in another, unless such enforcement and parcel of our own local law.
is for good reason, though contrary to the public policy of
THEORY OF HARMONY OF LAWS
the jurisdiction where enforcement is sought.
 A right having been vreated by the appropriate law, the  In many cases we have to apply the foreign law so that
recognition of its existence follows everywhere. wherever a case is decided, that is, irrespective of the
forum, the solution should approximately be the same:
Basis:
thus, identical or similar problems must have identical or
 It is based on the cardinal principle of territoriality. similar solutions anywhere.
 V.R.T., extra-territorial effect is given not to foreign laws o When the goal is realized, there will be “harmony of
and judgments as such but merely to the rights they have laws”
created.
THEORY OF JUSTICE
Defects:
 Purpose of all laws, is the dispensing of justice: if this can be
 They do not really apply the foreign law; instead they attained in many cases by applying the proper foreign law,
merely enforce the vested rights created by said foreign we must do so.
law.
THE RIGHT THEORY
o But then in recognizing said vested rights, they
implicitly recognize the foreign law, for how else  Sometimes we have to apply the proper foreign law
can they determine whether or not there has been because courtesy, convenience, and international duty so
a vesting of rights? demand; because there are vested rights we cannot
 Based on the mistaken notion of the concept of conceivably ignore; because all too often the foreign law
“territoriality” has apparently become part and parcel of our law; because
 Sometimes the forum is not faced with the problem of identical situations should be resolved by identical remedies
“vested rights” instead, the problem is whether or not to irrespective of the forum; and finally, because to do
apply certain foreign disabilities or incapacities. otherwise may ultimately result in the negation of justice.

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 CHAPTER IV REQUISITES BEFORE FOREIGN JUDGMENTS MAY BE RECOGNIZED
AND ENFORCE IN THE PHILIPPINES:
THE NATURE AND PROOF OF FOREIGN JUDGEMENTS
1. There must be proof of the foreign judgment;
A foreign judgment does not itself have any extra-territorial
2. The judgment must be on civil or commercial matter
application. Thus, it may ordinarily be enforced only within the
 If criminal, revenue or administrative or remedial
territory of the tribunal issuing it.
matter, it would fall under the exceptions to the
RECOGNITION AND ENFORCEMENT FOREIGN JUDGMENTS application of the foreign law.
DISTINGUISHED: 3. There must be no lack of jurisdiction, no want of notice, no
collusion, no fraud (must be extrinsic), no clear mistake of
RECOGNITION OF FOREIGN ENFORCEMENT OF FOREIGN law or fact.
JUDGMENT JUDGMENT
4. The judgment must not contravene a sound and established
Our courts will allow said Exist when a plaintiff wants the
public policy;
foreign judgment to be as a court to positively carry out and
5. The judgment must be RES JUDICATA in the state that
defense to local litigation. make effective in the
rendered it;
Philippines a foreign judgment.

Involves merely the sense of Implies a direct act of REQUISITES OF RES JUDICATA:
justice sovereignty a. Judgment must be final;
Necessitates a separate action b. Court rendering it must have jurisdiction over the
Does not require either action or proceeding brought precisely subject matter and the parties;
or special proceeding to make the foreign judgment c. Judgment must be based on merits;
effective d. There must be identity of parties, of subject matter
Necessarily carries with its and of cause of action.
May exist without enforcement
recognition
Note: Both need to present proof of the foreign judgment. It would seem that when our courts enforce a foreign judgment by
allowing it, the effect is that it is really our own court’s judgment
REASON WHY NOT ALL FOREIGN JUDGMENTS CAN BE that we enforce.
RECOGNIZED OR ENFORCED IN OUR COUNTRY

1. The requisite proof may not be adequate;

2. They may contravene our established public policies;
3. They may contradict one another;
4. In some countries, the administration of justice may be
shockingly corrupt.

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 CHAPTER V CHAPTER VI
NATURE AND COMPOSITION OF CONFLICT RULES
THE CHARACTERIZATION OF CONFLICT RULES

CHARACTERIZATION DEFINED
NATURE OF CONFLICT RULES
- It is the process of determining under what category a
Definition:
certain set of facts or rules fall.
 The provisions found in a country’s own law which govern - Process of deciding whether or not the facts relate to the
factual situations possessed of a foreign element. Examples: kind of question specified in a conflicts rule (Essays on the
Art 815, 1039,1753 CC. Conflicts of Laws, Falconbridge)
KINDS OF CONFLICT RULES - According to Falconbridge, one of the notably controversial
features of the discussion of characterization relates to the
1. The one sided rule or unilateral rule (which includes when problem of whether the characterization should be based
Philippine international law will apply) Example: Art. 15 CC;
on the concepts of the law of the forum or upon the
2. The all-sided rule or multilateral rule (which indicates when
concepts of the proper foreign law, or upon concepts
foreign law is to be applied) Example: Art. 16 CC.
derived from the study of comparative law.
COMPOSITION OF CONFLICT RULES - Ultimate purpose: To enable the forum to select the proper
law.
2 Parts:

1. the factual situation (the set of facts presenting a conflicts FACTORS WHICH GIVE RISE TO THE PROBLEM OF
problem); CHARACTERIZATION
2. the point of contact or the connecting factor (the law of the According to Dean R.H. Graveson, the problem arises from 3 main
country with which the factual situation is most intimately factors:
connected);
1. Different legal systems attach to the same legal terms with
different meanings
 An identity of name covers a difference of nature or
content of a legal idea.
2. Different legal systems may contain ideas or conceptions
completely unknown to one another.

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 3. Different legal systems apply different principles for the  It is clear that our won conflicts rule, that is, the
solution of problems which, in general terms, are of a conflict rule of the forum, should be applied.
common nature.  REASONS: a) This is precisely the purpose of
conflicts rule; b) At this stage, we still have to
STEPS IN CHARACTERIZATION
definitely ascertain the precise foreign country that
Falconbridge suggests 3 important steps in characterization: has the nearest or the most intimate connection
with the facts that have been brought out.
1. Characterization of the questions;
4. The characterization of the point of contact or the
2. Selection of the proper law; and
connecting factor;
3. Application of the proper law.
 After the third step, the next problem would be:
On our part, we believe that the following should be the steps taken whose characterization of the point of contact
in the application of the proper foreign law: should be adhered?
 Point of contact – the legal principle to determine
1. The determination of the facts involved;
which law to apply.
 Facts have to be ascertained. To determine what
5. The characterization of the problem as procedural or
the facts are, the forum has to be guided necessarily
substantive;
by its own rules of pleading and proof.
 The characterization of a statute into procedural or
2. The characterization of the factual situation;
substantive law becomes irrelevant when the
 After we have preliminary uncovered the facts in
country of the forum has a “borrowing statute”
the situation presented, we are now faced with the
since it has the practical effect of treating the
duty of determining whether the problem before us
foreign statute of limitation as one of substance.
is one of succession or of conjugal marital rights;
 Borrowing statute – directs the state of the forum
one of tort or of contract.
to apply the foreign statute of limitations to the
 It involves the process of assigning of the proven
pending claims based on a foreign law.
facts into their particular category.
3. The determination of the conflicts rule which is to be Suggested solution:
applied;
 To consider the prescriptive period or the Statue of
 After the characterization of the factual situation,
Frauds that the parties had in mind at the time the
the next question will be: what conflicts rule must
transaction took place. This is what is referred to as
we follow?
the “totality approach.”

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  According to the eminent authority, we have to: 2. Lex Causae theory – follow the characterization of the
a. Get the law intended by the parties to govern foreign state which is the principal point of contact. One
the contract; important drawback of this theory is that it begs the
b. Then, proceed to apply the intended law in its question, for the simple reason that we do not know exactly
“TOTALITY” including its periods of prescription what the principal point of contact is UNTIL after we shall
and its Statute of Frauds. have made a characterization of the factual situation.
3. Universal Analytical theory (aka Comparative Approach
EXCEPTION: If the subject matter governs property theory) – common factors both in the lex fori and lex causae
located in the Philippines, our own law on
are taken into consideration in order to avoid unjust results.
prescription and Statute of Frauds must apply. See
It comes only after a general comparative analytical study of
Art. 16, par. 1 of Civil Code.
the jurisprudence of all states involved.
NOTE: Regarding Sec. 48 of the Code of Civil Procedure, suppose the 4. Dual theory of lex fori and lex causae – similar to
cause of action accrued in TWO or MORE foreign states, the Comparative Approach theory except that only two
prescriptive law of which state must we consider? concepts enter into the picture of characterization of lex fori
- It is submitted that if the cause of action is divisible, that is, and that of the lex fori and that of lex causae.
if one part of it is accrued in State A (where the action has 5. Autonomous theory – consider the characterization of the
prescribed) and another accrued in State B (where the country referred to in the conflicts rule of lex causae.
action has not yet prescribed), we may still entertain in our 6. Totality theory – get the characterization intended by the
jurisdiction that part which has not prescribed. parties.
- If indivisible, we are not allowed to split it hence apply the
totality approach UNLESS in the implementation of said law
our judicial processes may be unduly hindered or
inconvenienced.
6. The pleading and proving of the proper foreign law;
7. The application of the proper foreign law to the problem.

THEORIES ON CHARACTERIZATION

1. Lex Fori theory – merely considers its own concepts, its own
characterization, otherwise, according to the adherents of
this theory.

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 CHAPTER VII 4. Status is generally supposed to have a universal character:
when a certain status is created by the law of one country, it
THE VARIOUS THEORIES ON STATUS AND CAPACITY
is GENERALLY judicially recognized all over the world
STATUS DEFINED
PERSONAL LAW
 The place of the individual in society, and consists of
 The law that attaches to an individual, wherever he may go
personal qualities and relationships, more or less
 A law that generally governs his status, his capacity, his
permanent with which the state and the community are
family relations, and the consequences of his actuations
concerned.
 Is a personal quality of relationship, not temporary in nature JUSTIFICATION OF PERSONAL LAW
nor terminable at the mere will of the parties, with which
 Base on the conception of man as a social being, so
third persons and the state are concerned (Prof. Beale of
that those transactions of his daily life which affect
Harvard University).
him most closely in a personal sense, such as
CAPACITY DEFINED marriage, divorce, legitimacy, many kinds of
capacity, and succession may be governed
 Sum total of his rights and obligations
universally by that system of law most suitable and
Our Civil Code distinguishes 2 kinds of capacity: adequate for the purpose

1. Capacity to act (active capacity) DEFECT IN PERSONAL LAW

 Power to do acts with legal effects;
 it is understood differently in various countries and
2. Juridical Capacity (passive capacity)
even when there is uniformity in the concepts, still
 The fitness to be the subject of legal relations
varying theories as to the determinative law have
CHARACTERISTICS OF STATUS come up into play

1. Status is conferred principally by the state not by the THE THEORIES ON PERSONAL LAW OR THE LAW THAT SHOULD
individual GOVERN STATUS AND CAPACITY IN GENERAL
2. Status is a matter of public or social interest
1. The NATIONAITY theory
3. Status being a concept of social order, cannot easily be
 By virtue of which the states and capacity of an
terminated at the mere will r desire of the parties
individual are generally governed by the law of his
concerned.
nationality ( PERSONAL THOERY)
2. The DOMICILIARY theory

15
  Law of the domicile as the proper determinative law DEFECTS OF THE NATIONALITY THEORY
on status and capacity (TERRITORIAL THEORY)
1. Sometimes, change of nationality or citizenship is hard to
3. The SITUS theory
effectuate.
 Views the particular place or situs of an event or
2. Some individuals, for some reasons, are stateless.
transaction as generally the controlling law
(ECLECTIC THEORY) 3. There are persons who possessed dual or multiple
nationalities.
4. It is not always desirable to apply to aliens their national
laws.

CHAPTER VIII THREE KINDS OF CITIZENS IN THE PHILIPPINES

THE NATIONALITY THEORY 1. Natural-born citizens – those who are citizens of the
Philippines from birth without having to perform any act to
acquire or perfect their Philippine citizenship (Art. IV, Sec.2,
NATIONALITY THEORY RESTATED 1987 Constitution).
2. Naturalized citizens – those who become such through
It is the theory by virtue of which the status and capacity of an
judicial proceedings (Art. IV, Sec. 1 [4], 1987 Constitution)
individual are generally governed by the law of his nationality. (Arts.
3. Citizens by election – those who by virtue of certain legal
15, 16, 1039, Civil Code; Art. 21, Family Code)
provisions become such by choosing Philippine citizenship
NATIONALITY AND CITIZENSHIP at the age of 21 or within reasonable time thereafter.

One Viewpoint: 2 THEORIES ON WHETHER PLACE OR ANCESTRY DETERMINES

CITIZENSHIP
Nationality is membership in an ethnic, social, racial, and cultural
group while Citizenship is membership in a political society. 1. Jus Soli – citizenship by place of birth.
Another viewpoint: 2. Jus Sanguinis – citizenship by blood.

Term national includes not only citizenship, but all those owing THE PROBLEM OF DUAL AND MULTIPLE NATIONALITIES
allegiance to a particular state.
Strictly speaking, the problem can hardly arise because citizenship is
NOTE: However, in Conflicts of Law, nationality and citizenship will a matter to be exclusively determined by a country’s own law. In
be considered as synonymous terms.

16
other words, Philippine law is only allowed to determine who A judicial declaration that a person is a Filipino citizen
Filipino citizens are and who are not. cannot be made in a petition for naturalization for the
reason that in this jurisdiction, there can be no independent
Art. 2 of Hague Convention: “Any question as to whether a person
action for the judicial declaration of the citizenship of an
possesses the nationality of a particular state should be determined
individual. Indeed a declaration of Philippine citizenship
in accordance with the law of the state. “
CANNOT be validly mad in an action for declaratory relief
However, from the viewpoint of a third state, dual or multiple (In Re Villa Abrille, v. Rep., L-7096, May 31, 1956) or in a
citizenship may really exist. summary action for a change or correction in the Civil under
Art. 412 of the Civil Code. (Tin v. Rep., L-5609, Feb. 5, 1964).
VARIOUS WAYS IN WHICH DUAL CITIZENSHIP MIGHT ARISE: One instance when a declaration of Philippine citizenship
a. Through a Naturalized Citizen’s Failure to Comply with may be made is a petition for injunction (to restrain for
Certain Legal Requirements in the Country of Origin instance the Alien Control Officer, acting under orders from
b. From a Combined Application of Jus Soli and Jus Soli and Jus an Associate Commissioner of Immigration, from compelling
certain people, allegedly Filipinos, to register as aliens).
Sanguinis
(Lorenzo Lim, etc. v. De la Rosa, L-17790, March 31, 1964).
c. By the Legislative Act of States
In case a person claims to be a Filipino, doubts must be
d. By the Voluntary Act of the Individual Concerned
resolved in favor of the Government and against the
THE PROBLEM OF STATELESS INDIVIDUALS claimant. (Commissioner of Immigration, et al. v. Garcia, L-
28082, June 28, 1974).
1. How statelessness is brought about:
a. He may have been deprived of his citizenship for any Lorenzo Lim & Juana Alvarez Lim V. De La Rosa, Etc. L-17790,
March 31, 1964
cause, such as the commission of a crime;
b. He may have renounced his nationality by certain acts, HELD: If the person claiming to be a citizen of the country who is
express or implied; being required or compelled to register as alien can show, establish
c. He may have voluntarily asked for a released from his or prove that he is such citizen, the remedy of injunction to prevent
original state; the officers from requiring or compelling him to register as alien is
d. He may have been born in a country which recognizes certainly the proper and adequate remedy to protect his right.
only principle of jus sanguinis CITIZENSHIP OF A FILIPINO WOMAN WHO MARRIES A FOREIGNER
WHERE A DECLARATION OF PHILIPPINE CITIZENSHIP MAY BE 1. Rule Prior to the 1973 Constitution
MADE

17
  If she acquired his nationality, she Lose Philippine prove in a judicial proceeding that she possesses all
citizenship otherwise she remained a Filipino. qualification set forth in Sec. 2 and none of disqualifications
2. Rule Under the 1973 Constitution under Sec. 4.
 A female citizen of the Philippines who marries an alien CITIZENS OF THE PHILIPPINES UNDER 1935 CONSTITUTION
shall retain her Philippine citizenship, UNLESS by her act
or omission she is deemed, under the law, to have 1. Those who were citizens of the Philippines at the time of
renounced her citizenship. (Art. III, Sec. 2, 1973 adoption of the Constitution.
Constitution). 2. Those born in the Philippines of foreign parents who, before
3. Rule under the 1987 Constitution adoption of the Constitution, had been elected to a public
 Citizens of the Philippines who marry aliens shall retain office in the Philippines.
their citizenship, under the law, to have renounced it. 3. Those whose fathers are citizens of the Philippines.
(Art. IV, Sec. 4, 1987 Constitution). - Enunciates the principle of Jus Sanguinis
- Rule applies whether the mother is a Filipino or not;
CITIZENSHIP OF A FOREIGN WOMAN WHO MARRIES A FILIPINO and whether the child is born in the Philippines or
outside
1. Rule Prior to the MOY YA Case
- Does it apply to a naturalized Filipino father?
If she has all the qualifications and none of the
a. Minor child born BEFORE naturalization
disqualifications for Philippine citizenship she becomes a
Filipino, PROVIDED, that she is able to prove these facts in a 1. Born in the Phil – Filipino
proper proceedings. “Any woman who is now or may 2. Born outside Phil
hereafter be married to a citizen of the Philippines…shall be i. If dwelling in the Phil at the time of
deemed a citizen of the Philippines,” still the law requires parent’s naturalization – Filipino
that she “might herself be lawfully naturalized” implying ii. If dwelling outside the Phil at the time
that she must first prove that she has all the qualifications of parent’s naturalization – Filipino only
and none of the disqualifications for naturalization. during his minority unless he resides
2. Rule After the MOY YA Case permanently in the Philippines when
In Moy Ya Lim v. Comm. Of Immigration, the Court still a minor.
held that under Sec. 15 of CA No. 473, an alien woman b. Minor child born AFTER naturalization
marrying a Filipino native-born or naturalized becomes ipso 1. Born in the Phil – Filipino
facto a Filipino provided she is not disqualified to be a 2. Born outside Phil – Filipino unless within
citizen of the Philippines under Sec. 4 of the same law. In
one year after reaching age of majority he
effect, it ruled that it is not necessary for an alien citizen to

18
 fails to register himself as Phil citizen at Phil 5. Those who are naturalized in accordance with the law.
consulate.
4. Those whose mothers are citizens of the Philippines, and CITIZENS OF THE PHILIPPINES UNDER 1973 CONSTITUTION
upon reaching the age of majority, elect Philippine 1. Those who were citizens of the Philippines at the time of
citizenship. adoption of this Constitution.
Requisites: 2. Those whose fathers or mothers are citizens of the
a. Father here must NOT be a Filipino citizen, Philippines.
otherwise, another provision applies; 3. Those who elect Philippine citizenship pursuant to 1935
b. Mother must be a Filipino citizen; Constitution.
c. Upon reaching the age of majority, child must 4. Those who are naturalized in accordance with the law.
elect Philippine citizenship.
NOTE: Those children born after the effectivity date of 1973
Q: As what moment must the mother be a citizen of the Constitution (01/17/73), of mothers who are citizens of the
Phil? Philippines are Filipinos without the need of election.
A: It is sufficient for the mother to have been a Filipino CITIZENS OF THE PHILIPPINES UNDER 1987 CONSTITUTION
citizen at the time of her marriage to the foreigner.
1. Those who were citizens of the Philippines at the time of
Q: Within what period after attaining age of majority must adoption of this Constitution.
the child elect Phil citizenship? 2. Those whose fathers or mothers are citizens of the
A: Within a reasonable period which depends on the Philippines.
peculiar circumstances of each case. 3. Those born before the effectivity date of 1973 Constitution
(01/17/73), of Filipino mothers who elect Philippine
Q: Before the child elects Phil nationality, what is his
citizenship upon reaching the age of majority.
nationality?
4. Those who are naturalized in accordance with the law.
A: Generally, it would be the nationality of the father, of the
child is a legitimate child. NATURALIZED FILIPINO CITIZENS

Q: if Filipino not married with foreigner, only cohabiting, is “Philippine citizenship may be lost or reacquired in the manner
the child Filipino? provided by law” (Art. IV, Sec 3, Constitution)

A: Yes. Being illegitimate, child will follow mother’s

citizenship.

19
NATURALIZATION DEFINED i. He held office under the Government of the Phil
or under that of any of the provinces, cities,
- It is the process of acquiring the citizenship of
municipalities or political subdivisions;
another country.
ii. He has established new industry or introduced a
- It is a judicial process, where formalities of law have
useful invention in the Phil;
to be complied with including judicial hearing and
iii. He is married to a Filipino woman;
approval of the petition (in strict sense).
iv. He had been engaged as a teacher in a public or
- It may mean not only the judicial process but also
recognized private school not established for
the acquisition of another citizenship by such acts
exclusive instruction of children of persons of
as marriage to a citizen, and the exercise of the
particular nationality or race in any branches of
option to elect a particular citizenship (in broad
education or industry for a period of 2 yrs;
sense).
v. He was born in the Philippines (CA No.473)
ATTRIBUTES OF NATURALIZATION c. Must be of good moral character and believe in the
principles underlying the Phil Constitution, and must have
a. Citizenship is not a right, it is a privilege.
conducted himself in a proper and irreproachable manner
b. The requisite conditions for naturalization are laid down by
during the entire period of his residence in the Phil in his
Congress; courts cannot change or modify them.
relation with the government as well as with his
c. Only foreigners may be naturalized.
community;
d. Final judgment for naturalization can never be truly final.
d. Must own real estate in the Philippines worth not less than
e. Naturalization demands allegiance to our Constitution, laws
Php5,000 or must have some lucrative trade, profession or
and government.
lawful occupation;
QUALIFICATIONS FOR NATURALIZATION e. Must be able to speak and write English or Spanish and any
one of the principal Philippine language;
a. Petitioner must not be less than 21 years of age on the date f. Must have enrolled his minor children of school age in any
of hearing of the petition; public or private schools recognized by the Bureau of
b. Must resided in the Phil for a continuous period of not less Private School where Phil history, govt and civics are taught
than 10 yrs; or prescribed as part of school curriculum during the entire
- May be reduced to 5 yrs in the ff. cases: period of residence required of him prior to hearing of his
petition for naturalization.

20
DISQUALIFICATIONS FOR NATURALIZATION schools recognized by govt and not limited to any
race or nationality;
a. Persons opposed to organized government or affiliated with
ii. Those who have resided continuously in the Phil for
any association or group who uphold and teach doctrines
30 yrs or more before filing their application;
opposing all organized government;
iii. Widow and minor children of an alien who declared
b. Persons defending or teaching the propriety of violence,
his intention to become citizen of the Philippine and
personal assault or assassination for the success and
dies before he is actually naturalized.
predominance of their ideas;
c. Polygamists or believers in the practice of polygamy; NOTE: It is a jurisdictional requirement for the petition for
d. Persons convicted of a crime involving moral turpitude; naturalization to state that the applicant has filed declaration of
e. Persons suffering from mental alienation or incurable intention or is exempt from making such declaration (Sy Ang
contagious disease; Hoc v. Rep)
f. Persons who, during the period of their residence in the
b. Petition for naturalization must be filed.
Phil, have not mingled socially with the Filipinos or not
c. After publication in the Official Gazette, the petition will be
evinced a sincere desire to learn and embrace customs,
heard.
traditions and ideals of the Filipinos;
d. If the petition is approved, there will be a rehearing two
g. Citizens or subjects of nations with whom the US and Phil
years after the promulgation of the judgment awarding
are at war;
naturalization.
h. Citizens or subjects of a foreign country other than the US,
e. Taking oath of the allegiance to support and defend the
whose laws do not grants Filipinos the right to become
Constitution and the laws of the Philippines.
naturalized citizens or subject thereof.
CANCELLATION OF THE NATURALIZATION
STEPS IN NATURALIZATION PROCESS
Upon motion made in proper proceedings by SolGen or his
a. Declaration of intention to become a Filipino must first be
representatives, or by the proper Provincial Fiscal, the
filed unless the applicant is exempted from this competent judge may cancel the naturalization certificate issue
requirement. and its registration in Civil Registry:
Persons exempted:
i. Persons born in the Phil and who have received a. If it shown that said naturalization certificate was obtained
their primary and secondary in public or private fraudulently or illegally;
b. If the person naturalized shall, within 5 yrs next following
the issuance of said certificate, return to his native country

21
 or to some foreign country and establish permanent HOW PHILIPPINE CITIZENSHIP MAY BE LOST
residence therein;
a. By naturalization in foreign countries;
c. If the petition was made on an invalid declaration of
b. By express renunciation of citizenship
intention;
c. By subscribing to an oath of allegiance to support the
d. If it shown that the minor children of the person naturalized
constitution or law of a foreign country upon attaining 21
failed to graduate in public or private schools recognized by
yrs of age or more: PROVIDED, Filipino may not divest
the Bureau of Private School, where Phil history, govt and
himself of Philippine citizenship in any manner while RP is at
civics are taught or prescribed as part of school curriculum,
war with any country;
through the fault of their parents.
d. By rendering service to, or accepting commission in, the
e. If it shown that the naturalized citizen has allowed himself
armed forces of a foreign country: PROVIDED it will not
to be used as a dummy in violation of the Constitution or
divest such Filipino of his citizenship if the ff. circumstances
legal provisions requiring Phil citizenship as a requisite for
are present:
the exercise, use or enjoyment of a right, franchise or
i. RP has a defensive and/or offensive pact of alliance with
privilege.
the said foreign country;
HOW IN GENERAL CITIZENSHIP MAY BE LOST ii. Said foreign country maintains armed forces in Phil
territory with consent of RP
a. By substitution of a New Nationality e. By cancellation of the certificate of naturalization
b. By renunciation of citizenship f. By having been declared by competent authority, a deserter
- aka Expatriation which is voluntary renunciation or of the Phil armed forces in time of war, unless,
abandonment of nationality and allegiance subsequently, a plenary pardon or amnesty has been
- May be express or implied. granted; and
c. By deprivation g. In case of a woman, upon her marriage to a foreigner, if by
- Exists when a person is deprived of his citizenship as
virtue of the laws in force in her husband’s country, she
a sort of punishment.
acquires his nationality.
d. By release
- Person asks the permission of his country to be HOW PHILIPPINE CITIZENSHIP MAY BE REACQUIRED
freed from citizenship therein.
a. By naturalization;
e. By Expiration
b. By repatriation of deserters of Army, Navy or Air Corps;
- Long stay abroad. Not applicable to Filipinos.
c. By direct act of Congress.

22
 CHAPTER IX 2. In codal provisions, both the domiciliary and the nationality
theories are used
THE DOMICILIARY THEORY
3. Domiciliary theory often runs to the rescue of the
DOMICILIARY THOERY RESTATED nationality theory in solving conflicts problems posed by
stateless individual, and by those possessed by a dual or
 The theory that in general the status, condition, rights, multiple citizenship
obligations, and capacity of a person should be governed by 4. During the control of the U.S., many domiciliary rules
the law of his domicile prevalent then were engrafted into our jurisprudence
DEFECTS OF DOMOCILIARY THOERY DEFENITION OF DOMICILE
 Countries have varying concepts as to the real meaning of a) Place where a person has certain settled, fixed, legal
domicile relations because:
 Domicile is comparatively easier to change than nationality a) It is assigned to him also by the law AT THE
 For ulterior motives, persons may pretend to be domiciliary MOMENT OR BIRTH (domicile of origin); or
of one state when in truth their domicile may be elsewhere b) It is assigned to him also by the law AFTER BIRTH on
DOMICILE DISTINGUISHED FROM CITIZENSHIP OR NATIONALITY account of a legal disability caused (constructive
domicile or domicile by operation of law) Examples:
DOMICILE CITIZENSHIP minority, insanity, marriage
Speaks of one’s Indicates ties of c) Because he has his home there that to which,
permanent place of allegiance and loyalty whenever he is absent, e intends to return (domicile
abode of choice)

THREE KINDS OF DOMICILE

 Person may be a citizen of one state, without being a
domiciliary thereof. a) Domicile of origin
 One may possess his domicile in one state without b) Constructive domicile
necessarily being a citizen or national thereof c) Domicile of choice

IMPORTANCE OF KNOWING DOMICILE  Domicile of origin is acquired at birth; constructive domicile

1. Our law makes in some cases the law of the domicile as is given after birth
controlling factor in the solution of conflicts problems  Domicile of origin applies only to infants; constructive
rather than the national law of the person involved domicile refers to all those who lack capacity to choose
their own domicile

23
  Domicile of origin never changes; constructive domicile may  The domicile of choice of the adopter
change depending upon circumstances iv. If ward
 Both domicile of origin and constructive domicile are fixed  the domicile of choice of the guardian
by law; domicile of choice is a result of the voluntary will b) Rules for Married Women
and action of the person concerned i. if the marriage is VALID
 Constructive domicile of a wife is the
RULES FOR THE DOMICILE OR ORIGIN (DOMICILIUM ORIGINS)
domicile of choice of both husband and
Domicile of origin of: wife.
 Wife may be allowed to have a separate
a) A legitimate child
domicile:
i. The domicile of choice of his father at the moment
1. Husband lives abroad except if
of the birth of the child
living abroad or there are other
b) An illegitimate child
valid and compelling reasons for the
i. Is the domicile of choice of the mother at the time
exemption
of the birth of the child
ii. if the marriage is VOIDABLE
c) A legitimated child
 Prior to annulment, constructive domicile of
i. The domicile of the father at the time of the birth
the wife is the domicile of choice of both
d) An adopted child
the wife and the husband unless permitted
i. Not domicile of the adopter but the domicile of the
to select her own domicile of choice
real parent or the parent by consanguinity
 After annulment, she no longer under any
e) A foundling
constructive domicile
i. It is the country where it was found
iii. if the marriage is VOID
RULES FOR THE CONSTRUCTIVE DOMICILE (DOMICILIUM  she has no constructive domicile
NECESARIUM) c) Rules for Idiots, Lunatics, and the Insane
i. below the age of majority
a) Rules for Infants
 rules for infants are applicable to them
i. If legitimate
ii. above the age of majority
 Domicile of choice of either the father or
 with guardian
mother
1. follow the domicile of choice of
ii. If illegitimate
their guardian
 Domicile of choice of the mother
 without guardian
iii. If adopted

24
 1. place where they had there  Every natural person has a domicile, he cannot be without
domicile of choice before they one.
became insane  No natural person can have more than one domicile at a
time
RULES FOR DOMICILE OF CHOICE
 For change of domicile
 Domicile of choice is that which is voluntarily chosen by a 1. Intention to reside elsewhere without actual
sui juris as his more or less permanent home that to which residence in the place chosen will NOT be sufficient
whenever he is absent, he intends to return. 2. Actual residence in the new place without the
 Fundamental principles governing domicile of choice: intention to make it the permanent abode will also
a) No natural person must ever be without a domicile not be enough.
b) No person can have two or more domiciles at the 3. To effect a change of domicile both the ACTUAL
same time, except for certain purposes, and from STAY and the INTENT must concur
different legal viewpoints  For retention of old domicile
c) Every sui juris may change his domicile 1. There need NOT be a concurrence of the two
d) Once acquired, it remains the domicile unless a new 2. One may retain his old domicile so long as he
one is obtained: resides there OR even if not, so long as he intends
1. By a capacitated person to return
2. With freedom of choice  Intention without residence or residence without intention
3. With actual physical presence in the place will not suffice for the acquisition of a domicile but will be
chosen sufficient for the retention of an existing domicile
4. A provable intent that it should be one’s  In view of the legal disability, infants, idiots, lunatics and the
fixed and permanent place of abode insane cannot acquire any domicile of choice
 That there should be  The following cannot also acquire new domicile of choice
o Animus manendi (intent to 1. A convict or prisoner
remain) 2. Involuntary exiles
o animus non-revertendi 3. Soldiers
(intent not to return to the 4. Public officials and employees, diplomats, and
original abode) consular officers

25
 DOMICILE DISTINGUISHED FROM RESIDENCE CHAPTER X

DOMICILE RESIDENCE THE SITUR OR ECLECTIC THEORY

Used to indicate a Denotes a fixed
place of abode, permanent residence THE SITUS OR ECLECTIC THEORY RESTATED
whether permanent to which when In general, it states that the capacity, legal condition, or status of an
or temporary absent, one has the individual should be governed not necessarily by law of his
intention of returning
nationality nor by law of his domicile but by law of the place (situs)
a man can have but He may have
where an important element of the problem occurs or is situated.
one domicile for one numerous places of
and the same residence However, the theory distinguishes between 2 kinds of participation
purpose at any time of the individual concerned:

1. If the participation is active (he does the act voluntary), the

 The place of obtaining a residence certificate and the data governing law is the law of actual situs (the place of transaction or
contained therein are NOT CONCLUSIVE as to the real event); and
residence or domicile of a person owning said certificate
2. If the participation is passive (when the effects of the act are set
CONSTITUTIONAL AND PENAL SAFEGUARDS ON DOMICILE forth in the law), the governing law is the law of the legal situs (the
a) Constitutional Provisions legal situs of an individual is supposed to be his domicile).
b) Penal Provisions for the Crime of EXPULSION (Art. 127 RPC) EXAMPLE:
c) Under Art. 32 of the Civil Code
Problem: 2 Filipinos, domiciled in Japan, get married in California.
What law governs:

a. The validity of marriage?

b. The marital obligations of husband and wife?

Answer: If we apply SITUS theory,

a. Act of getting married is a voluntary act, hence participation

is active. Since the marriage took place in California, the
California law governs.

26
 b. Marital obligations of husband and wife are regulated or PROPOSED SOLUTIONS
imposed by law, hence passive. The law of legal situs, which
1. We may reject the renvoi
is the domicile of the parties – Japanese law.
 Means that we do not want the problem to be sent
Applying our conflicts rule on the matter: back to us, that we do not want the matter to be
referred back to us
a. If the marriage is valid in California, the marriage is also
2. We may accept the renvoi
valid in the Philippines (SITUS THEORY) except if marriage
3. We may follow the theory of desistment (also referred to as
becomes bigamous, polygamous or incestuous as
the mutual-disclaimer of jurisdiction theory)
determined by Philippine law (Nationality theory since the
 We desist or refrain from applying the English law
parties are both Filipinos).
because we tell ourselves that we are asked to
b. Their personal marital obligations are governed by
apply the English or national law, but how can we
Philippine Law under Art. 15, Civil Code (Nationality theory).
apply English law when said law is based, NOT ON
Property relations also govern by Philippine law (Nationality
NATIONALITY but on the domicile hence we ought
theory) by virtue of Art. 80, Family Code.
not to apply English law and are left with no
alternative except to apply Philippine law.
4. We may make us of the “foreign court theory”
CHAPTER XI
 Our Philippine court, in deciding the case, will put
THE PROBLEM OF THE RENVOI itself in the position of the English (or foreign court);
and whatever the English court will do respecting
INTRODUCTION TO THE RENVOI PROBLEM the case, the Philippine court will likewise do.
 Renvoi literally means “referring back”; the problem arises Summary:
when there is a doubt as to whether a reference to a foreign
law a) Foreign court “rejects the renvoi,” the ultimate result is
a) is a reference to the INTERNAL law of said foreign that we will apply OUR internal law on succession
law; or b) If the foreign court “accepts the renvoi,” the ultimate
b) is a reference to the WHILE of the foreign law, end is for us to apply ENGLISH internal law on
including its CONFLICT RULES succession. This results in DOUBLE RENVOI
 In the latter case, if one state involved follows the  Is that which occurs when the local court, in
nationality theory, and the other, the domiciliary theory, adopting the foreign court theory, discovers
there is a possibility that the problem may be referred back that the foreign court accepts the renvoi
to the law of the first state.

27
 c) If the foreign court follows the “desistment theory” the  Unless we reject the renvoi we shall in a sense be
inevitable conclusion is that we will apply the English surrendering our legislative sovereignty, for we shall
internal law on succession be applying not our own conflicts rules but the
d) If the foreing court also follows the “foreign court conflicts rules of foreign states
theory” the result will be the vicious circle already 2. Acceptance of the Renvoi
adverted to as “international ping-pong”  We should accept the renvoi because this would
result in a harmony of decisions, irrespective of
TRANSMISSIONS
forum.
 It is the process of applying the law of a foreign state 3. The Desistment theory
through the law of a second foreign state.  This has exactly the same advantages and the same
disadvantages as the acceptance of the renvoi
DOUBLE RENVOI VS. TRANSMISSION
4. The Foreign Court Theory
DOUBLE RENVOI TRANSMISSION  Generally produces a harmony of decisions; as a
Deals with 2 Deals with 3 or more matter of fact it was specifically designed to combat
countries countries the defects of the single renvoi (acceptance of
Deals with a Deals with a renvoi)
“referring back” “transmitting”
SUGGESTED CONCLUSION

IMPLICATIONS OF RENVOI AND TRANSMISSION  In the absence of more definitive rules on the matter it is
suggest that the theory be adopted which, considering the
1. BOTH renvoi and transmission may apply not only to circumstances of a given situation, will best result in
successional rights; they may refer also to marriage, to fairness, equity and justice.
other contracts and agreements, in fact, to almost anything
covered by Conflicts of Laws
2. BOTH problems may occur even if (in revoi) the two
countries both adhere to the NATIONALITY THEORY or both
to the DOMICILARY THEORY

ARGUMENTS IN FAVOR OF EACH OF THE PROPOSED SOLUTIONS

FOR RENVOI

1. Rejection of the Renvoi

28