Conflict Of Laws

ATENEO CENTRAL BAR OPERATIONS 2007 Civil Law SUMMER REVIEWER CONFLICT OF LAWS

CHAPTER 1: GENERAL PROVISIONS

Transactions involved

Private transactions between private individuals

Remedies and Sanctions

Resort to municipal tribunals

Sources

Generally derived from the internal law of the state; except any conflict of law question governed by a treaty

PRIVATE INTERNATIONAL LAW •

That part of the law of each State or nation which determines whether, in dealing with a legal situation, the law or some other State or nation will be recognized, given effect, or applied (16 Am Jur, 2d, Conflict of Laws, §1).

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That part of municipal law of a State which directs its courts and administrative agencies, when confronted with a legal problem involving a foreign element, whether or not they should apply a foreign law/s (Paras).

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NOTE: A factual situation that cuts across territorial lines and is affected by diverse laws of two or more States is said to contain a foreign element.

FUNCTIONS OF CONFLICT OF LAW RULES 1. To proscribe the conditions under which a court or agency is competent to entertain a suit or proceeding involving facts containing a foreign element; 2. To determine the extent, validity and enforceability of foreign judgment 3. To determine for each class of cases the particular system if law by reference to which the rights of the parties must be ascertained DISTINGUISHED FROM PUBLIC INTERNATIONAL LAW BASIS

CONFLICT OF

LAW OF NATIONS

LAW

Nature Persons involved

Municipal in International in QuickTime™ and a TIFF (Uncompressecharacter d) decompressor character are needed to see this picture. Dealt with by Sovereign States private and other entities individuals; possessing governs international individuals in personality, e.g., their private UN; governs transactions States in their which involve relationships a foreign amongst element themselves

—Adviser: Dean Cynthia del Castillo

Generally affected by public interest; those in general are of interest only to sovereign States May be peaceful or forcible Peaceful: includes diplomatic negotiation, tender & exercise of good offices, mediation, inquiry & conciliation, arbitration, judicial settlement by ICJ, reference to regional agencies Forcible: includes severance of diplomatic relations, retorsions, reprisals, embargo, boycott, non-intercourse, pacific blockades, collective measures under the UN Charter, and war. Custom, Treaty and General Principles of law, recognized by civilized nations and juridical decisions and teachings of the most highly qualified publicists

SOURCES OF CONFLICT OF LAWS Direct Constitutions Codifications Special Laws International Customs

Indirect Natural Moral Law Work of Writers

Head: Joy Ponsaran, Eleanor Mateo; Understudy: Joy Tajan, John Paul Lim; Subject Head: Laarni Pichay;

Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Treatises and International Conventions Judicial Decisions

12. Lex Non Scripta - the unwritten common law, which includes general and particular customs and particular local law 13. Lex Patriae - national law

DEFINITION OF TERMS: 1. Lex Domicilii- law of the domicile; in conflicts, the law of one's domicile applied in the choice of law questions. 2. Lex Fori - law of the forum; that is, the positive law of the State, country or jurisdiction of whose judicial system the suit is brought or remedy is sought. Substantive rights are determined by the law where the action arose (lex loci) while the procedural rights are governed by the law of the place of the forum (lex fori) 3. Lex Loci - law of the place 4. Lex Loci Contractus - the law of the place where the contract was made or law of the place where the contract is to be governed (place of performance) which may or may not be the same as that of the place where it was made 5. Lex Loci Rei Sitae - law of the place where the thing or subject matter is situated; the title to realty or question of real estate law can be affected only by the law of the place where it is situated 6. Lex Situs - law of the place where property is situated; the general rule is that real property is governed by the law of the State where it is situated 7. Lex Loci Actus - law of the place where the act was done 8. Lex Loci Celebrationis - law of the place where the contract is made 9. Lex Loci SolutionisQuickTime™ - lawand of the place of a decompressor solution; the lawTIFFare of(Uncompressed) the place where payment or needed to see this picture. performance of a contract is to be made

14. Depecage – where different aspects of a case involving a foreign element may be governed by different systems of law 15. 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. 16. Double Renvoi – occurs when the local court, in adopting the foreign court theory, discovers that the foreign court accepts the renvoi; ultimately then, it is the foreign internal law that will be used 17. Desistment – mutual disclaimer of jurisdiction 18. Foreign Court Theory – the local forum, in deciding the case, will put itself in the position of the foreign court, and whatever the foreign court will do respecting the case, the local forum will likewise do 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

10. Lex Loci Delicti Comissi - law of the place where the crime took place

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11. Lex Mercatoria - law merchant/commercial law; system of laws adopted by all commercial nations and constitute as part of the law of the land; part of common law

JURISDICTION OVER THE PERSON

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.

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Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 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

CHAPTER 3: WAYS OF DISPOSING CONFLICTS CASES 1.

DISMISS THE JURISDICTION

CASE

FOR

LACK

OF

2. DISMISS THE CASE ON THE GROUND OF FORUM NON-CONVENIENS. DOCTRINE OF FORUM NON-CONVENIENS

JURISDICTION OVER PROPERTY •

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• 1. 2. 3.

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: If the action is in rem quasi in rem Involves the personal status of the plaintiff

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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 MINIMUM CONTACTS TEST AND FUNDAMENTAL FAIRNESS TEST •

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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.

INSTANCES WHEN INTERNAL LAW SHOULD BE APPLIED: a.

A specific law of the forum decrees that internal law should apply

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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

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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

LONG-ARM STATUTES •

QuickTime™ and a (Uncompressed) decompressor Statutes whichTIFFspecify thethis picture. kinds of contacts are needed to see 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

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Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 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 FOREIGN LAW •

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AND

APPLY

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 QuickTime™ and a TIFF (Uncompressed) decompressor residents, & to give protection to our citizens, are needed to see this picture. 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 •

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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 Page 254 of 297

Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 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.

STATUTE OF FRAUDS 1. 2.

Substantive – If the words of the law relate to forbidding the obligation Procedural – If the law forbids the enforcement of the obligation

STATUTE OF LIMITATIONS DISTINCTION BETWEEN ENFORCEMENT

RECOGNITION

AND

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

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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 QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

STAGES IN CHARACTERIZATION: 1. 2. 3. 4.

Determination of the factual situation Characterization of the factual situation Determination of the applicable Conflicts rule 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

1. Substantive – When the limitation was directed RECOGNITION OF FOREIGN JUDGMENT Courts will allow the foreign judgment to be presented as a defense to a local litigation Involves merely the sense of justice Does not require either an action or a special proceeding

ENFORCEMENT OF FOREIGN JUDGMENT Plaintiff wants courts to positively carry out and make effective in the State a foreign judgment Virtually implies a direct act of sovereignty Necessitates a separate action or proceeding brought precisely to make the foreign judgment effective May exist without Necessarily carries with enforcement it recognition For BOTH recognition and enforcement, proof of the foreign judgment has to be presented. Moreover, the requisites or conditions for the recognition or enforcement of foreign judgments must be present. 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 possible test for the determination of applicable law: Page 255 of 297

Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 1. The nationality of a person, his domicile, residence, his place of sojourn, or his origin. 2. The seat of legal or juridical person 3. Lex Situs 4. Locus Actus 5. The place where the act is intended to take effect, the place of performance of contractual duties, or the place where the power of attorney is to be exercised 6. Lex loci intentionis 7. Lex fori – applies to procedural matters and whenever the content of the otherwise applicable foreign law is excluded from application in a givem case for the reason that it fails under one of the exceptions to the application of foreign law. 8. The flag of the ship, which in many cases is decisive of practically all legal relationships of the ship and of its master or owner as such. CHAPTER 6: PERSONAL LAWS • •

The law which governs a person’s family relations, capacity or status. Three most common personal laws are the Nationality Rule, Domiciliary Rule, Eclectic Theory

NATIONALITY LAW THEORY •

The Philippines adheres to the nationality law theory. 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.

PROBLEMS IN APPLYING THE NATIONALITY PRINCIPLE

either the nationality of the country of which he is habitually and principally resident, or the nationality of the country with which in the circumstances he appears to be closely connected.” MULTIPLE CITIZENSHIP ARISES DUE TO: a. Through a Naturalized Citizen’s Failure to Comply with Certain Legal Requirements in the country of origin b. From a combined application of Jus Soli and Jus Sanguinis principle c. By the legislative Act of States d. By the voluntary Act of Individual concerned 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. DOMICILIARY THEORY

1. MULTIPLE CITIZENSHIP • •

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In matters of status, he is usually considered by the forum as exclusively his own national, his additional foreign nationality is disregarded In case the litigation arises in and a athird country, the QuickTime™ TIFF (Uncompressed) decompressor law most consistently applied are needed to see this picture.is that of the country of which the person is not only a national but where he has his domicile or habitual residence, or in the absence thereof, his residence. NOTE: Article 5 of the Hague Convention on the Conflict of Nationality laws provides: “ a third state shall, of the nationalities which such person possesses, recognize exclusively in its territory

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The individual’s private rights, status, capacity and conditions are determined by his domicile.

DOMICILE • 1. 2.

3.

Is that place where a person has certain settled, fixed, legal relations because: it is assigned to him by law at the MOMENT OF BIRTH (domicile of origin) 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) he has a HOME there – that to which whenever Page 256 of 297

Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 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. Vellila v. Posadas – abandonment of one’s domicile required deliberate and provable choice of a new domicile, coupled with actual residence in the place chosen, with a declared or provable intent that it should be one’s fixed and permanent place of abode

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.

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 the renvoi but the process used by the forum court is to desist applying the foreign law. 4. Foreign Court Theory • Foreign court assumes the same position that the foreign court would take if the case is litigated in the foreign state. Hence: a. If the foreign court would accept the renvoi, the local court shall apply the foreign law. b. If the foreign court would reject the renvoi, the local court shall apply lex fori. c. If the foreign court would apply the desistment theory, the local court shall apply the foreign law. d. If the foreign court would use the foreign court theory, then international pingpong would ensue. DOUBLE RENVOI THEORY • Occurs when the local court, in adopting the foreign court theory, discovers that the foreign court accepts the renvoi. TRANSMISSION • Process of applying the law of a foreign state thru the law of a second foreign state. Testate Estate of Amos G. Bellis – The renvoi doctrine does not apply when the referred foreign law does not have a conflict of law rule on the same subject matter. The referral to the foreign law shall immediately pertain to the internal laws of the foreign state.

CHAPTER 7: RENVOI •

A procedure whereby aQuickTime™ legal matter is referred by and a TIFF (Uncompressed) decompressor the conflict of laws rules of the forum to a foreign are needed to see this picture. 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

CHAPTER 8: RULES ON STATUS •

Status, is the place of an individual in a society and consists of personal qualities and relationships, more or less permanent, with which the state and the community are concerned. Page 257 of 297

Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 FACTUAL SITUATION (1) beginning of personality natural persons (2) ways and effects of emancipation (3) age of majority (4) use of names and surnames (5) use of titles of nobility (6) absence (7) presumptions of death and survivorship

POINT OF CONTACT (1) national law of the child (Article 15, Civil Code) (2) national law (Art. 15) (3) national law (Art. 15) (4) national law (Art. 15)

parties to follow the formalities of the place of celebration. (this is followed in the Philippines) 2. Optional theory – parties may follow either the lex loci celebrationis or their national law. This rule is followed in most countries. 3. Ecclesiastical rule – the formalities of both the lex loci celebrationis and the national law of the parties must be complied with.

(5) national law (Art. 15) (6) national law (Art. 15) (7) lex fori (Arts. 43, 390, 391, Civil Code; Rule 131, Sec. 5 (jj), Rules of Court)

Celebrated abroad

CHARACTERISTICS OF STATUS 1. Status is conferred principally by the state not by the individual. 2. Status is a matter or public or social interest. 3. Status being a concept of social order, cannot easily be terminated at the mere will or desire of the parties concerned. 4. Status is generally supposed to have a universal character: when a certain status is created by law of one country, it is GENERALLY judicially recognized all over the world.

FACTUAL SITUATION Between Filipinos

Between Foreigners

CHAPTER 9: RULES ON MARRIAGE MARRIAGE AS A CONTRACT •

Marriage as a contract has two kinds of requisites: 1. Formal – generally do NOT affect the validity of the marriage. Art 3 of the Family Code provides for three formal requisites namely: a. authority of the solemnizing officer b. marriage license c. marriage ceremony where the contracting parties appear before the solemnizing officer. 2. Essential – affects the validity of the marriage; QuickTime™ and a prescribes two Art 2 of the Family Code TIFF (Uncompressed) decompressor are to needed to see this picture. essential requisites marriage: a. legal capacity of the contracting parties who must be male and female b. consent freely given in the presence of a solemnizing officer. THEORIES ON THE FORMAL REQUISITES OF MARRIAGE 1. Compulsory theory – It is imperative for the

Mixed

Celebrated in the Phils.

Between Foreigners

Mixed

Marriage by Proxy (NOTE: a

POINT OF CONTACT G.R.Lex loci celebrationis Exceptions: (1) Arts. 26, 35 (1), (4), (5) and (6), 36, 37 and 38 of the Family Code (bigamous, polygamous and incestuous marriages) 2) consular marriages G.R. Lex loci celebrationis Exceptions : (1) highly immoral (like bigamous and polygamous marriages) (2) UNIVERSALLY considered INCESTUOUS, i.e., between brothers-sisters and between ascendantsdescendants Apply rule on marriages between foreigners – to uphold the validity of the marriage National law (Art. 21, Family Code) provided the marriage is not highly immoral or universally considered incestuous National law of the Filipino (otherwise public policy may be militated against) Lex loci celebrationis (with prejudice with the foregoing rules Page 258 of 297

Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 marriage by proxy is considered celebrated where the proxy appears)

RULES GOVERNING EXTRINSIC VALIDITY • GENERAL RULE: lex loci celebrationis 1. All states recognize as valid those marriages celebrated in foreign countries if they comply with the formalities prescribed therein (Hague Convention) 2. The forms and solemnities of contracts, wills and other public instruments shall be governed by the laws of the country in which they were executed (Article 17, Civil Code) 3. All marriages solemnized outside the Philippines in accordance with the laws in force in the country where they were solemnized and valid there as such shall also be valid in this country (Article 26, Family Code) •

EXCEPTIONS: The following are void marriages between Filipinos even if valid in the foreign 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.

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NOTE: These exceptions put into issue the capacity of the partiesQuickTime™ to enter the marriage and into a (Uncompressed) decompressor and thereforeTIFFarerelate to the substantive needed to see this picture. 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.

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.

INTRINSIC VALIDITY – controlled by the parties’ Page 259 of 297

Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Ibanez, 29 Phil 606 - Both our citizens and aliens should endeavor to have their rights established by the tribunals of the State which have coercive means to enforce their decisions; otherwise a person runs the risk of incurring useless expenditures to obtain a judgment that cannot be enforced.

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 the marriage) determines the consequences of any defect to form. Generally, the same applies with reference to substantive or intrinsic validity. But with regard to capacity of the parties to marry, their national law is determinative. ABSOLUTE DIVORCE •

GENERAL RULE: our courts only observe relative divorce (legal separation). Any divorce sought in Philippine courts will not be granted. Filipino couples cannot obtain absolute divorces abroad and neither shall a valid divorce obtained abroad by Filipino couples be recognized here.

divorce or separation must comply with the national law of the spouses and the law of the place where the application for divorce is made.

LEGAL SEPARATION • There is no obstacle to aliens in securing relative divorce in the Philippines, provided: 1. Their national law is willing to recognize Philippine jurisdiction. 2. Separation is agreeable to the internal law of the national state of the parties. •

NOTE: Grounds for Legal separation are the cumulative grounds provided by the national law of the parties (lex nationalii).

CHAPTER 11: LEGITIMACY, LEGITIMATION & ADOPTION

FACTUAL SITUATION 1) Paternity and Filiation (including Parental Authority and Reciprocal Support) – legitimacy, legitimation, recognition, presumptions of legitimacy, rights and obligations of parents and children, including parental authority, and reciprocal support.

QuickTime™ and a

decompressor • EXCEPTIONS: TIFFare(Uncompressed) needed to see this picture. 1. Valid divorce obtained abroad between foreigners whose national laws allow divorce. 2. Where a marriage between a Filipino citizen and a foreigner is validly celebrated and a divorce is thereafter validly obtained abroad by the alien spouse capacitating him or her to remarry, the Filipino spouse shall have capacity to remarry under Philippine law. • Hague Convention provides that the granting of

2. Adoption – creation of the status of adoption; rights and obligations of adopter and adopted 3. Guardianship a) over the person 1) appointing

POINT OF CONTACT 1) if legitimate – national law of the father (Art 15, Civil Code) 2) if illegitimate – national law of the mother unless recognized by the father in which case, national law of the father (Art 15, Civil Code) 3) determination of whether legitimate or illegitimate (national law of the father, as a rule) – (Art. 15, Civil Code) Doctrine of Immutability of Status – change of parent’s nationality does not affect the status of the child 2) in general, national law of the adopter NOTE: In the Philippines. adoption by a Filipino does not confer Filipino citizenship on an adopted alien child.

1) court of the domicile of the Page 260 of 297

Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 court 2) powers of guardian

b) over the property 1) appointing court 2) powers of guardian

c) over the person and over the property 4. Funerals

ward 2) coextensive with those of the appointing court (law of the appointing state)

• •

1) court where the property is found (lex rei sitae)

•

2) coextensive with those of the appointing court (law of the appointing state) c) see 3(a) and 3(b) • Where the body is buried.

GOVERNING LAW ON THE LEGITIMACY OF A CHILD: • The legitimacy of the child is determined by the national law of the parents. If the parents belong to different nationalities, legitimacy of the child is determined by the national law of the male parent. • NOTE: Presumptions of Legitimacy are not mere rules of evidence but are considered as substantive law, hence governed as well by the national law of the male parent. RIGHTS OF A LEGITIMATE CHILD: 1. To bear the surname of the father and the mother 2. receive support from their parents, brothers and sisters, in proper cases; 3. to the legitime and other successional rights. • NOTE: The law governing the capacity to succeed and the amount of successional rights of the legitimate children are governed by the national law of the decedent. LEGITIMATION Legitimation – is the act QuickTime™ by which a person not born and a TIFF (Uncompressed) decompressor legitimate, is placed upon the same footing as a are needed to see this picture. legitimate child. LAWS REGULATING RELATIONS BETWEEN •

LAWS REGULATING RELATIONS BETWEEN LEGITIMATE/D CHILDREN AND PARENTS

GOVERNING LAW: The National law of the male parent at the time of the marriage shall govern: a. Whether legitimation has been effected b. Whether or not the legitimation will have retroactive effect c. Other connected matters

Personal law of the father controls the rights and duties of parents and children. EXCEPT: parental interest in the immovable property of the child which may be regulated by the lex situs. NOTE: Reference to the personal law of the father may result in joint exercise of parental authority over the property of the child by father and mother (Art. 221, Family Code). Father’s personal law could grant parental authority to the mother of the illegitimate children (Art. 176, Family Code). NOTE: Change in the nationality of the male parent affects the consequent relations between the parents and child.

RIGHTS AND OBLIGATIONS INVOLVED UNDER PHILIPPINE LAWS INCLUDE: 1. 2. 3. 4.

Personal Care Parental Authority Provide for Education Reciprocal Support

LAWS REGULATING RELATIONS ILLEGITIMATE CHILDREN • •

BETWEEN

Relations between the mother and the illegitimate child are governed by the mother’s personal law. If the child is later legitimated, personal law of the child follows that of the father.

RIGHTS OF AN ILLEGITIMATE CHILD 1. To use the surname of the mother 2. To Support 3. To Legitime ADOPTION Adoption – an act which renders a child legitimate in relation to the adopting parents, to whom the child may or may not be related. 1.

2.

Jurisdiction to Grant Adoption – The Philippine Courts shall have jurisdiction to grant petition for adoption but must apply the lex fori with respect to procedural matters. Capacity of Aliens to Adopt – According to Salonga, the cumulative substantive requirements of the forum and of the national law of the adopter must be complied with. Page 261 of 297

Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Effects or Consequences of Adoption – a. Successional rights – governed by the Conflict Rules on Succession. b. Parental Authority – governed by the national law of the adopter 4. Recognition of a Decree on Adoption – The Philippines recognizes the principle of foreign adoptions validly rendered and recognized where effected. However, such adoption is still subject to municipal law i.e. the obligation to register said adoption in the civil registry. EXCEPTION, such adoption shall not be recognized if it is contrary to public policy or residents’ interest forbids its enforcement (Agpalo) 3.

CHAPTER 12: RULES ON PROPERTY

• GENERAL RULE - Lex rei sitae (Article 16, CC) • EXCEPTIONS: 1. Successional rights – National law of decedent (Article 16 par. 2, CC) 2. Capacity to succeed – National law of decedent (Article. 1039) 3. Contracts involving real property which do not deal with the title thereto - The law intended will be the proper law of the contract (lex loci voluntantis or lex loci intentionis) TANGIBLE PERSONAL PROPERTY GENERAL RULE - Lex rei sitae (Article 16, CC) EXCEPTIONS: same as those for real property

RULES GOVERNING TRANSFERS:

DIFFERENT

Vessels

Law of the flag (or in some cases, place of registry)

Other means

Law of the depot (storage place for supplies or resting place)

Things in transitu (these things have a changing status because they move) Loss, destruction, deterioration Validity & effect of the seizure of the goods

RULES ON REAL PROPERTY

• •

Means of Transportation

KIND

OF

1. Voluntary transfers of interests in chattels (other than assignment for the benefit of creditors) – validity and effect of conveyance as between the parties are determined by the local law of the State which, with respect to the particular issue, has the most significant relationship to the parties. 2. Acquisitions of title QuickTime™ by operation of law (e.g. and a decompressor acquisition byTIFFare(Uncompressed) prescription or adverse needed to see this picture. possession, validity and priority of attachments, levied of execution, statutory liens) – governed by lex situs. TANGIBLE PERSONAL PROPERTY (CHOSES IN POSSESSION) FACTUAL SITUATION POINT OF CONTACT

Disposition or alienage of the goods

Law of the destination (Article. 1753, CC) Locus regit actum (where seized) – because said place is their temporary situs Lex loci volutantis or lex loci intentionis – because here there is a contract

INTANGIBLE PERSONAL PROPERTY INTANGIBLE PERSONAL PROPERTY (CHOSES IN ACTION) FACTUAL SITUATION POINT OF CONTACT Where debtor may be Recovery of debts or effectively served with summons (usually the involuntary assignment of domicile) debts (garnishment) Lex loci voluntatis or lex Voluntary assignment of loci intentionis (proper law debts of the contract) Taxation of debts Administration of debts

Negotiability or non-negotiability of an instrument

Validity of transfer, delivery or negotiation of the instrument Effect on a corporation of the

Domicile of creditor Lex situs of assets of the debtor (for these assets can be held liable for the debts) The right embodied in the instrument (for example, in the case of a Swedish bill of exchange, Swedish law determines its negotiability) In general, situs of the instrument at the time of transfer, delivery or negotiation Law of the place incorporation Page 262 of 297

Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 sale of corporate shares Effect between the parties of the sale of corporate shares

Taxation on the dividends of corporate shares Taxation on the income from the sale of corporate shares Franchises Goodwill of the business & taxation thereto Patents, copyrights, trademarks, trade names

Lex loci voluntatis or lex loci intentionis (proper law of the contract) – for this is really a contract; usually this is the place where the certificate is delivered) Law of the place of incorporation

ii. Lex domicilii iii. RP law (Article 816, CC), iv. Lex loci celebrationis (Article 17(1)) •

Law of the place where the sale was consummated

NOTE: Joint wills executed by Filipinos whether in the Philippines or abroad, even though authorized by the foreign country which they may have been executed, shall not be valid in the Philippines (Art. 819 Civil Code). This prohibition only applies to Filipino nationals. The validity of a will as to its form depends upon the observance to the law in force at the time it is made.

INTRINSIC VALIDITY OF WILLS Law of the place that granted them Law of the place where the business is carried on In the absence of a treaty, they are protected only by the State that granted them NOTE: foreigners may sue for infringement of trademarks and trade names in the RP ONLY IF Filipinos are granted reciprocal concessions in the State of the foreigners

•

•

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.

CHAPTER 13: WILLS, SUCCESSION & ADMINISTRATION OF CONFLICT RULES EXTRINSIC VALIDITY OF WILLS •

Deals with the forms and solemnities in the making of wills.

GOVERNING LAWS 1. If the Testator is a FILIPINO QuickTime™ and a (Uncompressed) – decompressor a. Executed inTIFF Philippines Philippine law are needed to see this picture. b. Executed in foreign country – i. Lex nationalii ii. Lex loci celebrationis (Article 817) 2. If the Testator is an ALIEN a. Executed in the Philippines i. Lex nationalii ii. Lex loci celebrationis (Article 815) b. Executed abroad i. Lex nationalii

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 Page 263 of 297

Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 •

•

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.

•

2.

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

•

VCEPI v. Philippine Gurantee – The Philippines has no express Conflict rules regarding the intrinsic validity of contracts. The SC held that in such instances, the party may apply the law expressly agreed upon by the parties or the law intended by the parties to govern their transactions. The lex intentionis may be inferred from the nationality of the parties, their residence, place of performance, etc. In this case, the parties did not agree upon on which law shall apply. Hence, the SC applied the law with the most substantial connection to the transaction. Absent any proof of the law of the proper state, the SC applied the doctrine of processual presumption, that such law is the same as the law of the forum.

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)

Rule on Validation – parties entering into a contract upon equal terms intended their agreement to be binding, and the law will give effect on their intent whenever it can do so under any law whose application the parties can be reasonably be assumed to have taken into account. QuickTime™ and a TIFF (Uncompressed) decompressor are needed to see this picture.

•

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.

CAPACITY TO ENTER INTO CONTRACTS • • •

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. 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. The contacts to be taken into account in determining the applicable law to an issue are the ff: a. Place of contracting b. Place of negotiation c. Place of Performance d. The location of the subject matter of the contract e. The domicile, residence, nationality, place of incorporation and place of business of the parties.

•

PHILIPPINE RULE: the capacity of the contracting parties is governed by their respective national laws. EXCEPTION: In alienation and encumbrance of property, the capacity of the contracting parties are governed by the lex situs (Art. 16 (1)) The doctrine of estoppel may be invoked in case a party incapacitated to enter into a contract under his national law later invokes such law to evade his obligations. PROVIDED: The other party entered the contract in good faith. The Courts must uphold the Justified Page 264 of 297

Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 Expectations of the Party, especially in cases where the national laws of the parties are incidental or without substantial connection to the contract. OTHER THEORIES ON CAPACITY 1. Lex loci celebrationis (defect: this makes possible the evasion of the national law) 2. Lex nationalii (defect: this may impede commercial transactions) 3. Lex loci solutionis (law of the place of performance) (defect: there may be several places of performance 4. Prof Minor’s solution: • Perfection – lex loci celebrationis • Cause or consideration – lex loci considerations • Performance – lex loci solutionis (defect: this theory combines the defect of the others) CHOICE OF LAW CONTRACT CASES

ISSUES

IN

CONFLICTS

1. Choice of Forum Clause • Parties may stipulate on the venue of the suit in case of litigation concerning the contract. However, a case arising from a contract will be litigated in the forum chosen by the parties if the choice of the forum clause specifically identifies it as the only venue. • When there is no fraud or overreaching, and there is no showing that the choice of forum clause would be unreasonable and unjust, the clause must be given effect. Pakistan International Airlines v. Ople – The Supreme Court held that where the relationship between the parties is affected with public interest and the multiple and substantive contacts of the contracts are with Philippine law, Philippine Courts and agency may not be ousted of their jurisdiction. 2. Contracts with Arbitration Clause • Many courts apply to arbitration agreements the law of whatever place the parties have designated as governing, thus QuickTime™ and a sustaining their TIFF (Uncompressed) decompressor agreement to arbitrate. are needed to see this picture. 3. Adhesion Contracts • When there is no proof of arbitrariness, abuse of power, or gross negligence, the contract or stipulation will be enforced.

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 WRONG (locus delicti)

THE

PLACE

OF

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 the place where the tortuous act was committed. OBLIGATION THEORY •

The tortuous act gives rise to an obligation, which is transitory and follows the person committing the tortuous act and may be enforced wherever he may be found.

MODERN THEORIES IN TORT LIABILITY 1. Doctrine of Elective Concurrence – Either the laws of the state where the actor engaged in his conduct and where the injury was incurred may be invoked. 2. Theory of Most Significant Relationship – The applicable law shall be the law of the country which has the most significant relationship to the situation. In determining the state which has the most significant relationship, the following factors are to be taken into account: a. place where the injury occurred b. place of conduct causing the injury c. domicile, residence, nationality, place of incorporation and place of business d. place where relationship between the parties is centered 3. State-interest Analysis – This principle provides for the following methodology: a. Determine false or spurious conflicts (i.e., internal laws of the different states have the 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: Page 265 of 297

Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 a. Where the State of Injury provides for higher standard of conduct or financial protection against injury than the State where the tortious act was done, the law of the former shall govern. b. Where the State of injury and conduct provides for lower standard of conduct and financial protection than the home State of the person suffering the injury, the law of the State of conduct and injury shall govern. c. Where the State in which the defendant has acted has established special controls over conduct of the kind in which defendant was engaged, the special controls and benefits must be applied although the State has no relationship to the defendant. d. Where the law in which the relationship has its seat imposed higher standard of conduct or financial protection than the law of the State of the injury, the former law shall govern.

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

CONDITIONS FOR THE ENFORCEMENT OF TORT CLAIMS • • •

The tort is not penal in character If the enforcement of the tortious liability won’t contravene our public policy If our judicial machinery is adequate for such enforcement

CHAPTER IV: CRIMES PHILIPPINE RULE • Salonga suggests for the following methodology in solving Torts Problems in the Phils: a. Ascertain and weigh the purpose underlying the tort law of the forum. If the Tort law of the Philippines embodies a social or economic policy, then the law of the forum on Torts shall be applied. 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 QuickTime™ and aactor has acted TIFF (Uncompressed) decompressor has interest in regulating the of persons are needed to see this conduct picture. found in its territory.

•

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)

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.

THEORIES AS JURISDICTION

TO

WHAT

COURT

HAS

1. Territoriality theory – where the crime was committed 2. Nationality theory – country which the criminal Page 266 of 297

Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 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 ƒ

ƒ

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.

THE LOCUS DELICTI OF CERTAIN CRIMES Frustrated and Where the victim was injured (not consummated, where the aggressor wielded his homicide, weapon) murder, infanticide & parricide Where the intended victim was Attempted homicide, etc. (not where the aggressor was situated) – so long as the weapon or the bullet either touched him or fell inside the territory where he QuickTime™ and a TIFF (Uncompressed) decompressor was are needed to see this picture. Where the illegal marriage was Bigamy performed the property was Theft & Where unlawfully taken from the victim robbery (not the place to which the criminal went after the commission of the crime) Estafa or Where the object of the crime was swindling thru received (not where the false

false representation Conspiracy to commit treason, rebellion, or sedition NOTE: Other conspiracies are NOT penalized by our laws Libel Continuing crime Complex crime

representations were made) Where the conspiracy was formed (not where the overt act of treason, rebellion or sedition was committed)

Where published or circulated Any place where the offense begins, exists or continues Any place where any of the essential elements of the crime took place

CHAPTER XV: BUSINESS ASSOCIATIONS

FACTUAL SITUATION Powers and liabilities

CORPORATIONS POINTS OF CONTACT

Formation of the corporation (requisites); kind of stocks, transfer of stocks to bind the corporation, issuance, amount

General rule: the law of the place of incorporation Exceptions: • For constitutional purposes – even if the corporation was incorporated in the RP, it is not deemed a Filipino corporation & therefore can’t acquire land, exploit our natural resources, and perate public utilities unless 60% of capital if Filipino owned • For wartime purposes – we pierce the corporation veil & go to the nationality of the controlling stockholders to determine if the corporation is an enemy (CONTROL TEST) • Law of the place of incorporation

Page 267 of 297

Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 & legality & dividends, powers & duties of members, stockholders and officers Validity of corporate acts & contracts (including ultra vires acts) Right to sue & amenability to court processes & suits against it Manner & effect of dissolution

Domicile

Receivers (appointment & powers)

(center for administration or siege social) (center office principle) 3. Law of the place of exploitation (exploitation centre or siege d’ exploitation) • Law of the place of incorporation & law of the place of performance (the act or contract must be authorized by BOTH laws) • Lex fori

• Law of the place of incorporation provided that the public policy of the forum is not militated against • If not fixed by the law creating or recognizing the corporation or by any other provision – the domicile is where it is legal representation is established or where it exercises its principal functions (Article. 15) • Principal receiver is appointed by the courts of the State of incorporation; ancillary receivers, by the courts of any State where the corporation has assets (authority is COEXTENSIVE) w/ the authority of the appointing court

THEORIES ON THE PERSONAL AND/OR GOVERNING LAW OF CORPORATIONS: and a 1. Law of the place ofQuickTime™ incorporation – this is TIFF (Uncompressed) decompressor are needed to see this picture. generally the rule being adhered to by the Philippines. • EXCEPTIONS: a. Exploration and Exploitation of Natural resources b. Media c. Wartime Rule d. Piercing of Corporate Veil 2. Law of the place or center of management

WHEN DOES THE PERSONAL LAW OF THE CORPORATION GOVERNS? 1. requisites for formation of the corporation and its legal character 2. The capacity and powers of the corporation: Note however that two questions should be asked in determining the legal effect of an act of a corporation: First, is the corporation authorized by its charter to do the particular act? Second, is this act permitted by the law of the place where the act is done? 3. Kinds of stocks allowed and transfer of stocks in a way that would be binding on the corporation 4. Issuance, amount, and legality of dividends; 5. The internal organization of the corporate enterprise, the rights and liabilities of shareholders, members, directors, officers, their relations inter se, and stockholders’ participation in the management and in the profits. 6. Alteration or modification of the charter and the dissolution of the corporation.

PHILIPPINE JURISDICTION OVER FOREIGN CORPORATIONS • Consent doctrine – a foreign corporation will be recognized and will be allowed to transact business in any state which gives its consent. (Secs. 125, 126, 127 and 128 Corp. Code) • NOTE: all foreign corporations lawfully doing business here in the Philippines shall be bound by all laws, rules and regulations applicable to domestic corporations EXCEPT provisions for the creation, formation, organization or dissolution of corporations or those which fix the relations and liabilities or duties of the stockholders, members or officers of the corporation to each other. RIGHT TO BRING A SUIT • GENERAL RULE: if a corporation doing business in the country is not duly licensed or authorized to transact business in the Philippines, it cannot be permitted to maintain or intervene in any action, suit or proceeding in any court or administrative agency of the Philippines BUT it can be sued before any court or administrative tribunals on a valid cause (Sec. 133 of Corp Code). • EXCEPTIONS: 1. Isolated transactions 2. action to protect trademark, trade name, goodwill, Page 268 of 297

Civil Law Summer Reviewer ATENEO CENTRAL BAR OPERATIONS 2007 patent or for unfair competition 3. agreements fully transacted outside the Philippines 4. petition filed is merely a corollary defense in a suit against it 5. In case of Estoppel. A person who enters into a contract with a foreign corporation and receives benefits from the contract is estopped from setting up the failure of said corporation to comply with the requirements for doing business, in order to avoid liability. A corporation is “doing business” when it is continuing the body or substance of the business or enterprise for which it was organized. The term implies a continuity of commercial dealings and arrangements and contemplates, to that extent, the performance of acts and works or the exercise of some of the functions normally incident to, and in progressive prosecution of, the purpose and objective of its organization.

Creation of branches in the RP; validity & effect of the branches’ commercial transaction; & the jurisdiction of the court Dissolution, winding up, & termination of branches in the RP Domicile

RP law (law of the place where branches were created) (Article 15, Code of Commerce)

RP law (Article 15, Code of Commerce) If not fixed by the law creating or recognizing the partnership or by any other provision – the domicile is where it is legal representation is established or where it exercises its principal functions (Article. 15)

MULTI-NATIONAL CORPORATIONS • •

•

•

Cluster of corporations of diverse nationalities joined together by ties of common ownership and responsive to a common management strategy. Jurisdiction over a local counterpart may amount to jurisdiction on the parent company if the local counterpart is only a branch and is without separate juridical personality from the mother company and when such local counterpart is but a conduit or alter-ego of the parent company. However, if the local counterpart is a subsidiary with an entirely distinct personality, jurisdiction over the local counter-part is not jurisdiction over the parent company. NOTE: A subsidiary is one which is incorporated separately from the mother company, thus obtaining its own juridical personality.

PARTNERSHIPS FACTUAL SITUATION POINTS OF CONTACT QuickTime™ and a The personal law of The existence or nonTIFF (Uncompressed) decompressor are needed to see this picture. existence of legal the partnership, i.e., personality of the firm; the law of the place the capacity to where it was created contract; liability of (Article 15 of the Code the firm & the partners of Commerce) to 3rd persons (Subject to the exceptions given above as in the case of corps.) Page 269 of 297