23322069 Conflict of Laws

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ATENEOCENTRALBAROPERATIONS 2007

Civil LawSUMMER REVIEWER

Adviser: Dean Cynthia del Castillo Head: Joy Ponsaran, Eleanor Mateo; Understudy:Joy Tajan, John Paul Lim;Subject Head: Laarni Pichay;

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CONFLICT OF LAWS

CHAPTER 1: GENERAL PROVISIONS

PRIVATE INTERNATIONAL LAW

That part of the law of each State or nation whichdetermines whether, in dealing with a legalsituation, the law or some other State or nationwill be recognized, given effect, or applied (16Am Jur, 2d, Conflict of Laws, 1).

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

NOTE: A factual situation that cuts acrossterritorial lines and is affected by diverse laws oftwo or more States is said to contain a foreignelement.

FUNCTIONS OF CONFLICT OF LAW RULES

1. To proscribe the conditions under which a courtor agency is competent to entertain a suit orproceeding involving facts containing a foreignelement;

2. To determine the extent, validity andenforceability of foreign judgment

3. To determine for each class of cases theparticular system if law by reference to which therights of the parties must be ascertained

DISTINGUISHED FROM PUBLIC INTERNATIONALLAW

BASIS CONFLICT OFLAW

LAW OF NATIONS

Nature Municipal incharacter

International incharacter

Personsinvolved

Dealt with byprivateindividuals;governsindividuals intheir privatetransactionswhich involvea foreignelement

Sovereign Statesand other entitiespossessinginternationalpersonality, e.g.,UN; governsStates in theirrelationshipsamongstthemselves

Transac-tions

involved

Privatetransactions

betweenprivateindividuals

Generally affectedby public interest;

those in generalare of interest onlyto sovereignStates

RemediesandSanctions

Resort tomunicipaltribunals

May be peacefulor forciblePeaceful: includesdiplomaticnegotiation, tender& exercise of goodoffices, mediation,inquiry &conciliation,arbitration, judicialsettlement by ICJ ,reference toregional agenciesForcible: includesseverance ofdiplomaticrelations,retorsions,reprisals,embargo, boycott,non-intercourse,pacific blockades,collective

measures underthe UN Charter,and war.

Sources Generallyderived fromthe internallaw of thestate; exceptany conflict oflaw questiongoverned bya treaty

Custom, Treatyand GeneralPrinciples of law,recognized bycivilized nationsand juridicaldecisions andteachings of themost highlyqualified publicists

SOURCES OF CONFLICT OF LAWS

Direct Indirect

Constitutions Natural Moral LawCodifications Work of WritersSpecial LawsInternational Customs


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Civil Law Summer Reviewer

ATENEOCENTRALBAROPERATIONS2007

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Treatises andInternationalConventions

J udicial Decisions

DEFINITION OF TERMS:

1. Lex Domicilii- law of the domicile; in conflicts,the law of one's domicile applied in the choice oflaw questions.

2. Lex Fori - law of the forum; that is, the positivelaw of the State, country or jurisdiction of whose

judicial system the suit is brought or remedy issought. Substantive rights are determined by thelaw where the action arose (lex loci) while theprocedural rights are governed by the law of theplace of the forum (lex fori)

3. Lex Loci - law of the place

4. Lex Loci Contractus - the law of the placewhere the contract was made or law of the placewhere the contract is to be governed (place ofperformance) which may or may not be the sameas that of the place where it was made

5. Lex Loci Rei Sitae - law of the place where thething or subject matter is situated; the title torealty or question of real estate law can beaffected only by the law of the place where it is

situated

6. Lex Situs - law of the place where property issituated; the general rule is that real property isgoverned by the law of the State where it issituated

7. Lex Loci Actus - law of the place where the actwas done

8. Lex Loci Celebrationis - law of the place wherethe contract is made

9. Lex Loci Solutionis - law of the place ofsolution; the law of the place where payment orperformance of a contract is to be made

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

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

12. Lex Non Scripta - the unwritten common law,which includes general and particular customsand particular local law

13. Lex Patriae - national law

14. Depecage where different aspects of a caseinvolving a foreign element may be governed bydifferent systems of law

15. Renvoi Doctrine - doctrine whereby a juralmatter is presented which the conflict of lawsrules of the forum refer to a foreign law which inturn, refers the matter back to the law of theforum or a third State. When reference is madeback to the law of the forum, this is said to beremission, while reference to a third State iscalled transmission.

16. Double Renvoi occurs when the local court, inadopting the foreign court theory, discovers thatthe foreign court accepts the renvoi; ultimatelythen, it is the foreign internal law that will be used

17. Desistment mutual disclaimer of jurisdiction

18. Foreign Court Theory the local forum, indeciding the case, will put itself in the position ofthe foreign court, and whatever the foreign courtwill do respecting the case, the local forum willlikewise do

19. Nationality Theory - by virtue of which the statusand capacity of an individual are generallygoverned by the law of his nationality. This isprincipally adopted in the RP.

20. Domiciliary Theory - in general, the status,condition, rights, obligations, & capacity of aperson should be governed by the law of hisdomicile.

21. Long Arm Statutes - statutes allowing the courtsto exercise jurisdiction when there are minimum

contacts between the non-resident defendantand the forum.

CHAPTER 2: JURISDICTION

In international law, it is often defined as the rightof a State to exercise authority over persons andthings within its boundaries, subject to certainexceptions.

JURISDICTION OVER THE PERSON


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1. J urisdiction over the person of the plaintiff is

acquired from the moment he invokes the aid ofthe court and voluntarily submits himself byinstitution of the suit through proper pleadings

2. J urisdiction over the person of the defendant isacquired through:a. Voluntary appearance orb. Personal or Substituted service of summons

JURISDICTION OVER PROPERTY

Results either from seizure of the property undera legal process or from the institution of legalproceedings wherein the courts power over theproperty is recognized and made effective.

This kind of jurisdiction of jurisdiction is referredto as in rem jurisdiction. Another form of

jurisdiction is quasi in rem which affects only theinterests of particular persons in the thing.

NOTE: Summons by publication is authorized inthree cases:

1. If the action is in rem2. quasi in rem3. Involves the personal status of the plaintiff

MINIMUM CONTACTS TEST AND FUNDAMENTALFAIRNESS TEST

Due process requires only that in order to subject

a defendant to a judgment in personam, if he isnot present within the territory of the forum heshould have certain minimum contacts with itsuch that the maintenance of the suit does notoffend traditional notions fair play and substantial

justice.

In both in rem and quasi-in rem, all that dueprocess requires is that defendant be givenadequate notice and opportunity to be heardwhich are met by service of summons bypublication.

LONG-ARM STATUTES

Statutes which specify the kinds of contactswhich jurisdiction will be asserted over adefendant outside of state territory.

JURISDICTION OVER THE SUBJECT MATTER

J urisdiction over the subject matter is conferredby law

CHAPTER 3: WAYS OF DISPOSING CONFLICTSCASES

1. DISMISS THE CASE FOR LACK OFJURISDICTION

2. DISMISS THE CASE ON THE GROUND OFFORUM NON-CONVENIENS.

DOCTRINE OF FORUM NON-CONVENIENS

A forum may resist imposition upon its jurisdictioneven when jurisdiction is authorized by law on theground that the forum is inconvenient or the endsof justice would be best served by trial in anotherforum or the controversy may be more suitablytried elsewhere

ELEMENTSa. 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; andc. It has or is likely to have power to enforce its

decision.

3. ASSUME JURISDICTION AND APPLY THEFORUM LAW

INSTANCES WHEN INTERNAL LAW SHOULD BEAPPLIED:

a. A specific law of the forum decrees that internallaw should apply

EXAMPLES:i. Article. 16 of the Civil Code - real and

personal property subject to the law of thecountry where they are situated andtestamentary succession governed by lexnationalii

ii. Article 829 of the Civil Code - makesrevocation done outside Philippines validaccording to law of the place where will wasmade or lex domicilii

iii. Article 819 of the Civil Code - prohibitsFilipinos from making joint wills even if validin foreign country

b. The proper foreign law was not properly pleadedand proved

NOTE: As a general rule, courts do not takejudicial notice of foreign laws; foreign laws mustbe pleaded and proved

The following actions may be resorted in case of


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failure to prove and plead the proper foreign law:i. Dismiss the case for inability to establish

cause of actionii. 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 theapplication of foreign law.

EXCEPTIONS:a. The foreign law is contrary to the public

policy of the forumb. The foreign law is procedural in naturec. 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 administrativee. The foreign law or judgment is contrary to

good morals (contra bonos mores)f. The foreign law is penal in characterg. When application of the foreign law may work

undeniable injustice to the citizens of theforum

h. When application of the foreign law mightendanger the vital interest of the State

4. ASSUME JURISDICTION AND APPLYFOREIGN LAW

As a general rule, no rule of Private InternationalLaw would be violated if the courts should decide

to dispose of cases, according to the internal lawof the forum

EXCEPT: Where aforeign, sovereign, diplomaticofficial, or public vessel or property of anotherstate is involved, or where a state has by treaty,accepted limitations upon its jurisdiction overcertain persons or things.

THEORIES WHY FOREIGN LAW SHOULD BEGIVEN EFFECT:

1. Theory of Comity foreign law is applied

because of its convenience & because we wantto give protection to our citizens, residents, &transients in our land

2. Theory of Vested Rights we seek to enforcenot foreign law itself but the rights that have beenvested under such foreign law; an act done inanother State may give rise to the existence of aright if the laws of that State crated such right.

3. Theory of Local Law- we apply foreign law notbecause it is foreign, but because our laws, byapplying 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 applythe foreign laws so that wherever a case isdecided, 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 willbe 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 casesapplying the proper foreign law, we must do so.

CHAPTER 4: RECOGNITION ANDENFORCEMENT OF FOREIGN JUDGMENTS

A foreign judgment is recognized when it isgiven the same effect that it has in the statewhere it was rendered with respect to the parties,the subject matter of the action and the issuesinvolved. Where the foreign judgment is beingpresented as a defense to the claim of theplaintiff, what is involved is the recognition of aforeign judgment.

A foreign judgment is enforced when, in additionto being recognized, a party is given affirmativerelief to which the judgment entitles him. When aplaintiff asks the court of one state to carry outand make effective a judgment obtained by himin another state, what is involved is theenforcement of a foreign judgment.

REQUISITES FOR RECOGNITION ANDENFORCEMENT OF FOREIGN JUDGMENTS

1. Foreign judgment was rendered by a judicial or aquasi-judicial tribunal which had competent

jurisdiction over the parties and the case in theproper judicial proceedings in which thedefendant shall have be given reasonablenotice and the opportunity to be heard.

2. It must be a judgment on civil and commercialmatters.

3. The judgment must be valid according to the

court that delivered it;4. J udgment must be final and executory to

constitute res judicata in another action;

ELEMENTS:The judgment must bea. Finalb. Rendered by a competent courtc. On the Meritsd. Involve the same parties, subject matter and

cause of action.5. Foreign judgment must not be contrary to the

public policy or the good morals of the State


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where it is to be enforced; and6. J udgment must not have been obtained by fraud,

collusion, mistake of fact ormistake 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 inwhich its recognition/enforcement is sought.

DISTINCTION BETWEEN RECOGNITION ANDENFORCEMENT

PROOF OF FOREIGN LAWS

1. Written Lawa. By written publicationb. Copy attested to by the officer having

custody accompanied with a certificate thatsuch officer has the custody and sealed bythe appropriate public officer (section 24 rule132 of the Revised Rules of Court)

2. Unwritten Law

By the oral testimony of expert witnesses orwritings of jurists

EFFECTS OF FOREIGN JUDGMENTS

Under the Rules of Court, in case of a judgmentagainst a specific thing, the judgment isconclusive upon the title of the thing.

In case of a judgment against a person, thejudgment is presumptive evidence of a right asbetween the parties and their successors-in-interest by a subsequent title; but the judgmentmay be repelled by evidence of want of

jurisdiction, want of notice to the party, collusion,or clear mistake of law or fact.

CHAPTER 5: CHARACTERIZATION

The process by which a court at the beginning ofthe choice of law process assigns a disputedquestion to the proper area in substantive law

STAGES IN CHARACTERIZATION:

1. Determination of the factual situation2. Characterization of the factual situation3. Determination of the applicable Conflicts rule4. Characterization of the Point of Contact or the

Connecting Factor5. Determination between procedural and

substantial matter6. Pleading and Proving of the proper law

STATUTE OF FRAUDS

1. Substantive If the words of the law relate toforbidding the obligation

2. Procedural If the law forbids the enforcementof the obligation

STATUTE OF LIMITATIONS

1. Substantive When the limitation was directed

to the newly created liability specifically towarrant a qualification of the right

2. Procedural If it operates to bar the legalremedy without impairing the substantive rightinvolved.

NOTE: Borrowing statutes direct the state of theforum to apply the foreign statute of limitations tothe pending claim based on a foreign law (treatsthe statute of limitations as a substantive law)

DEPECAGE

The phenomenon where the different aspects ofthe case involving a foreign element may begoverned by different systems of laws.

TESTS OR FACTORS TO DETERMINE POINTS OFCONTACT:

Circumstances which may serve as the possibletest for the determination of applicable law:

RECOGNITION OFFOREIGN JUDGMENT

ENFORCEMENT OFFOREIGN JUDGMENT

Courts will allow theforeign judgment tobe presented as adefense to a locallitigation

Plaintiff wants courts topositively carry out andmake effective in theState a foreign

judgment

Involves merely thesense of justice

Virtually implies a directact of sovereignty

Does not requireeither an action or aspecial proceeding

Necessitates aseparate action orproceeding broughtprecisely to make theforeign judgmenteffective

May exist withoutenforcement

Necessarily carries withit recognition

For BOTH recognition and enforcement, proofof the foreign judgment has to be presented.Moreover, the requisites or conditions for the

recognition or enforcement of foreign judgmentsmust be present.


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1. The nationality of a person, his domicile,residence, his place of sojourn, or his origin.

2. The seat of legal or juridical person3. Lex Situs4. Locus Actus

5. The place where the act is intended to takeeffect, the place of performance of contractualduties, or the place where the power of attorneyis to be exercised

6. Lex loci intentionis7. Lex fori applies to procedural matters and

whenever the content of the otherwise applicableforeign law is excluded from application in agivem case for the reason that it fails under oneof the exceptions to the application of foreign law.

8. The flag of the ship, which in many cases isdecisive of practically all legal relationships of theship and of its master or owner as such.

CHAPTER 6: PERSONAL LAWS

The law which governs a persons familyrelations, capacity or status.

Three most common personal laws are theNationality Rule, Domiciliary Rule, EclecticTheory

NATIONALITY LAW THEORY

The Philippines adheres to the nationality lawtheory.

PROBLEMS IN APPLYING THE NATIONALITYPRINCIPLE

1. MULTIPLE CITIZENSHIP

In matters of status, he is usually considered bythe forum as exclusively his own national, hisadditional foreign nationality is disregarded

In case the litigation arises in a third country, thelaw most consistently applied is that of thecountry of which the person is not only a nationalbut where he has his domicile or habitualresidence, or in the absence thereof, hisresidence.

NOTE: Article 5 of the Hague Convention on theConflict of Nationality laws provides: a thirdstate shall, of the nationalities which such personpossesses, recognize exclusively in its territory

either the nationality of the country of which he ishabitually and principally resident, or thenationality of the country with which in thecircumstances he appears to be closelyconnected.

MULTIPLE CITIZENSHIP ARISES DUE TO:a. Through a Naturalized Citizens Failure to

Comply with Certain Legal Requirements inthe country of origin

b. From a combined application ofJus Soli andJus Sanguinis principle

c. By the legislative Act of Statesd. By the voluntary Act of Individual concerned

2. STATELESSNESS

Stateless persons are generally subject to thelaw of their domicile or habitual residence, or indefault thereof, to the law of their temporaryresidence.

STATELESSNESS ARISES DUE TO:a. Deprivation of his citizenship for any cause,

such as commission of a crimeb. Renunciation of ones 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 whoselaw recognizes only the principle of jus soli

NOTE: The Convention on the Adoption on theReduction of Statelessness (1961) mandates that

the jus sanguini country grants its nationality toperson born within its territory if he would beotherwise stateless, and the jus soli country toextend its nationality to a person who wouldotherwise be considered stateless when of hisparents is a citizen of the contracting state.

Art. 15. Laws relating to family rights and duties,or to the status, condition and legal capacity ofpersons are binding upon citizens of thePhilippines, even though living abroad.

DOMICILIARY THEORY

The individuals private rights, status, capacityand conditions are determined by his domicile.

DOMICILE

Is that place where a person has certain settled,fixed, legal relations because:

1. it is assigned to him by law at the MOMENT OFBIRTH (domicile of origin)

2. It is assigned to him by law AFTER BIRTH onaccount of legal disability caused for instance byminority, insanity or marriage in the case of awoman (constructive domicile or domicile byoperation of law)

3. he has a HOME there that to which whenever


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he is absent, he intends to return (domicile ofchoice)

NOTE: The forum determines domicile accordingto his own standards

GENERAL RULES ON DOMICILE:1. No natural person must ever be without a

domicile2. No person can have two or more domiciles at the

same time, except for certain purposes, and fromdifferent legal viewpoints

3. Every sui juris may change his domicile4. Once acquired, it remains the domicile unless a

new one is obtained:a. By capacitated personsb. With freedom of choicec. With actual physical presenced. And Provable intent that it should be ones

fixed and permanent place of abode, thereshould be animus manendi (intent to remain)or animus nonrevertendi (intent not to return)

5. The presumption is in favor of the continuance ofdomicile. The burden of Proof is on the one whoalleges that a change of domicile has takenplace.

SITUS OR ECLECTIC THEORY

The capacity, legal condition, or status of anindividual should be governed by the law of theplace where an important element of the problemoccurs or is situated.

CHAPTER 7: RENVOI

A procedure whereby a legal matter is referred bythe conflict of laws rules of the forum to a foreignstate, the conflict of laws rule of which, in turnrefers the matter back to the law of the forum(remission) or a third state (transmission).

SOLUTIONS TO THE RENVOI1. Reject the renvoi

If the conflicts rules of the forum refer the case tothe law of another state, it is deemed to meanonly the internal law of that state. Thus, the court

will apply the foreign law.2.Accept the renvoi

If the conflict rules of the forum refer the case tothe law of another state, it is deemed to includethe totality of the foreign law (internal law and

conflicts of laws rule). Thus, the court willrecognize the referral back and apply local law.3. Desistment theory

The forum court upon reference to anotherstates law sees that such law is limited inapplication to its own nationals domiciled in itsterritory and has no provision for application tonationals domiciled outside of the territory.Hence, the local court will apply local law.

This has the same result as the acceptance ofthe renvoi but the process used by the forumcourt is to desist applying the foreign law.

4. Foreign Court Theory

Foreign court assumes the same position that theforeign court would take if the case is litigated inthe 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 applythe foreign law.Vellila v. Posadas abandonment of ones

domicile required deliberate and provable choiceof a new domicile, coupled with actual residencein the place chosen, with a declared or provableintent that it should be ones fixed and permanentplace of abode

d. If the foreign court would use the foreigncourt theory, then international pingpongwould ensue.

DOUBLE RENVOI THEORY Occurs when the local court, in adopting the

foreign court theory, discovers that the foreigncourtaccepts the renvoi.

TRANSMISSION

Process of applying the law of a foreign state thruthe law of a second foreign state.

Testate Estate of Amos G. Bellis The renvoidoctrine does not apply when the referred foreignlaw does not have a conflict of law rule on the

same subject matter. The referral to the foreignlaw shall immediately pertain to the internal lawsof the forei n state.

CHAPTER 8: RULES ON STATUS

Status, is the place of an individual in a societyand consists of personal qualities andrelationships, more or less permanent, with whichthe state and the community are concerned.


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FACTUALSITUATION

POINT OF CONTACT

(1) beginning ofpersonality naturalpersons

(1) national law of thechild(Article 15, Civil Code)

(2) ways and effects ofemancipation (2) national law(Art. 15)

(3) age of majority (3) national law (Art. 15)(4) use of names andsurnames

(4) national law (Art. 15)

(5) use of titles ofnobility

(5) national law (Art. 15)

(6) absence (6) national law (Art. 15)(7) presumptions ofdeath and survivorship

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

CHARACTERISTICS OF STATUS1. 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 ofthe parties concerned.

4. Status is generally supposed to have a universalcharacter: when a certain status is created by lawof one country, it is GENERALLY judiciallyrecognized all over the world.

CHAPTER 9: RULES ON MARRIAGE

MARRIAGE AS A CONTRACT

Marriage as a contract has two kinds ofrequisites:

1. Formal generally do NOT affect the validity ofthe marriage.Art 3 of the Fami ly Code providesfor three formal requisites namely:a. authority of the solemnizing officerb. marriage licensec. marriage ceremony where the contracting

parties appear before the solemnizing officer.2. Essential affects the validity of the marriage;

Art 2 of the Family Code prescribes twoessential requisites to marriage:a. legal capacity of the contracting parties who

must be male and femaleb. consent freely given in the presence of a

solemnizing officer.

THEORIES ON THE FORMAL REQUISITES OFMARRIAGE1. Compulsory theory It is imperative for the

parties to follow the formalities of the place ofcelebration. (this is followed in the Philippines)

2. Optional theory parties may follow either thelex loci celebrationis or their national law. This ruleis followed in most countries.

3. Ecclesiastical rule the formalities of both thelex loci celebrationis and the national law of theparties must be complied with.

FACTUALSITUATION

POINT OF CONTACT

BetweenFilipinos

G.R.Lex locicelebrationisExceptions:(1) Arts. 26, 35 (1),

(4), (5) and (6), 36,37 and 38 of theFamily Code(bigamous,polygamous andincestuousmarriages)

2) consular marriagesBetweenForeigners

G.R. Lex locicelebrationisExceptions :(1) highly immoral

(like bigamousand polygamousmarriages)

(2) UNIVERSALLYconsidered

INCESTUOUS,i.e., betweenbrothers-sistersand betweenascendants-descendants

Celebratedabroad

Mixed Apply rule onmarriages betweenforeigners to upholdthe validity of themarriage

BetweenForeigners

National law (Art. 21,Family Code) provided

the marriage is nothighly immoral oruniversally consideredincestuous

Celebratedin the

Phils.

Mixed National law of theFilipino (otherwisepublic policy may bemilitated against)

Marriageby Proxy(NOTE: a

Lex loci celebrationis(with prejudice withthe foregoing rules


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marriage byproxy isconsideredcelebratedwhere the

proxyappears)

RULES GOVERNING EXTRINSIC VALIDITY

GENERAL RULE: lex loci celebrationis1. All states recognize as valid those marriages

celebrated in foreign countries if they comply withthe formalities prescribed therein (HagueConvention)

2. The forms and solemnities of contracts, wills andother public instruments shall be governed by thelaws of the country in which they were executed(Article 17, Civil Code)

3. All marriages solemnized outside the Philippinesin accordance with the laws in force in thecountry where they were solemnized and validthere as such shall also be valid in this country(Article 26, Family Code)

EXCEPTIONS:The following are void marriagesbetween Filipinos even if valid in the foreigncountry where celebrated or in case of mixedmarriages 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 judgmentof annulment or declaration of nullity,partition and distribution of properties and thedelivery of childrens presumptive legitimes;

e. Marriages where either spouse ispsychologically incapacitated;

f. Incestuous marriages; andg. Void marriages by reason of public policy.

NOTE: These exceptions put into issue the

capacity of the parties to enter into the marriageand therefore relate to the substantiverequirement for marriage. Since the personal lawof the parties, e.g., the national law of Filipinos,governs the questions of intrinsic validity ofmarriages between the Filipinos abroad, theabove enumerations are exceptions to lex locicelebrationis precisely because they arecontrolled by lex nationalii.

INTRINSIC VALIDITY controlled by the parties

personal laws (either domiciliary or nationality)

MARRIAGE AS A STATUS

Marriage as a status carries with it implications in

two fields:1. Personal rights and obligations of thespouses personal affair between husband andwife and will not ordinarily be interfered with thecourts of justice. Includes mutual fidelity,cohabitation, respect, assistance and support;right of wife to use husbands name; duty tofollow husbands residence.

GOVERNING LAW - National law of thehusband. Subsequent change on the nationalityof the spouses are proposed to have thefollowing effects:a. if both will have a common nationality the

new oneb. if only one will change the last common

nationalityc. if there never was any common nationality

the national law of the husband at the time ofthe wedding (Hague Convention)

2. Property Relations

GOVERNING LAW in the absence of acontrary stipulation in the marriage settlement,national law of the husband regardless of theplace of celebration of the marriage and theirresidence. 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 inthe Philippines and executed in the countrywhere the property is located; and

c. with respect to the extrinsic validity ofcontracts entered into in the Philippines notaffecting property situated in a foreigncountry whose laws require differentformalities for their extrinsic validity. (Art. 80,Family Code)

NOTE:The subsequent change of the nationalityof the husband or the wife has no effect on thespouses original property regime EXCEPT whenthe law of the original nationality itself changes

the marital regime, in which case the propertyrelations should change accordingly.This is thedoctrine of IMMUTABILITY IN THEMATRIMONIAL PROPERTY REGIME.

Recto v. Harden, 100 Phil 427 Legislativejurisdiction, aside from the authority to enact laws, isthe competence of a persons national law to governhis status.


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CHAPTER 10: ANNULMENT/ DECLARATION OFNULLITY/LEGAL SEPARATION

ANULLMENT/DECLARATION OF NULLITY

Grounds for annulment (if the marriage isvoidable merely) and grounds for declaration ofnullity (if the marriage is void ab initio) aregoverned by the law alleged to have beenviolated; in other words, it is the law of the placeof celebration (lex loci celebrationis) subject tocertain exceptions, that furnishes the grounds.

1. Jurisdiction to annul in practically all civilcountries following the nationality principle,nationals of the forum are permitted to sue forannulment irrespective of their domicile. In manycountries today however, jurisdiction is vested inthe court of the domicile of the parties.

J urisdiction over the non-resident defendant isnot essential. It is the status of the plaintiff that isin issue. He should be domiciled in the forum.

2. The governing law lex loci celebrationis (of themarriage) determines the consequences of any

defect to form. Generally, the same applies withreference to substantive or intrinsic validity. Butwith regard to capacity of the parties to marry ,their national law is determinative.

ABSOLUTE DIVORCE

GENERAL RULE: our courts only observerelative divorce (legal separation). Any divorcesought in Philippine courts will not be granted.Filipino couples cannot obtain absolute divorcesabroad and neither shall a valid divorce obtainedabroad by Filipino couples be recognized here.

EXCEPTIONS: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 isthereafter validly obtained abroad by the alienspouse capacitating him or her to remarry, theFilipino spouse shall have capacity to remarryunder Philippine law.

Hague Convention provides that the granting of

divorce or separation must comply with thenational law of the spouses and the law of theplace 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 thecumulative grounds provided by the national lawof the parties (lex nationalii).

CHAPTER 11: LEGITIMACY, LEGITIMATION &ADOPTION

FACTUALSITUATION

POINT OF CONTACT

1) Paternity andFiliation(includingParental Authorityand ReciprocalSupport)

legitimacy,legitimation,recognition,presumptions oflegitimacy, rightsand obligations ofparents andchildren, includingparental authority,and reciprocalsupport.

1) if legitimate national lawof the father (Art 15, CivilCode)

2) if illegitimate national lawof the mother unlessrecognized by the father in

which case, national law ofthe father (Art 15, CivilCode)

3) determination of whetherlegitimate or illegitimate(national law of the father,as a rule) (Art. 15, CivilCode)

Doctrine of Immutability ofStatus change ofparents nationality doesnot affect the status of the

child2. Adoption creation of thestatus of adoption;rights andobligations ofadopter andadopted

2) in general, national law ofthe adopter

NOTE: In the Philippines.adoption by a Filipino doesnot confer Filipino citizenshipon an adopted alien child.

3. Guardianshipa) over the person1) appointing 1) court of the domicile of the

Ibanez, 29 Phil 606 - Both our citizens and aliensshould endeavor to have their rights established bythe tribunals of the State which have coercive meansto enforce their decisions; otherwise a person runsthe risk of incurring useless expenditures to obtain a

judgment that cannot be enforced.


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court

2) powers ofguardian

b) over theproperty

1) appointingcourt

2) powers ofguardian

c) over the personand over theproperty

ward

2) coextensive with those ofthe appointing court (law ofthe appointing state)

1) court where the property isfound (lex rei sitae)

2) coextensive with those ofthe appointing court (law ofthe appointing state)

c) see 3(a) and 3(b)

4. Funerals Where the body is buried.

GOVERNING LAW ON THE LEGITIMACY OF ACHILD:

The legitimacy of the child is determined by thenational law of the parents. If the parents belongto different nationalities, legitimacy of the child isdetermined by the national law of the maleparent.

NOTE: Presumptions of Legitimacy are notmere rules of evidence but are considered assubstantive law, hence governed as well by thenational law of the male parent.

RIGHTS OF A LEGITIMATE CHILD:1. To bear the surname of the father and the mother2. 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 tosucceed and the amount of successional rights ofthe legitimate children are governed by thenational law of the decedent.

LEGITIMATION

LAWS REGULATING RELATIONS BETWEEN

GOVERNING LAW: The National law of the maleparent at the time of the marriage shall govern:a. Whether legitimation has been effectedb. Whether or not the legitimation will have

retroactive effectc. Other connected matters

LAWS REGULATING RELATIONS BETWEENLEGITIMATE/D CHILDREN AND PARENTS

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 bythe lex situs.

NOTE: Reference to the personal law of thefather may result in joint exercise of parentalauthority over the property of the child by fatherand mother (Art. 221, Family Code). Fatherspersonal law could grant parental authority to themother of the illegitimate children (Art. 176,Family Code).

NOTE: Change in the nationality of the maleparent affects the consequent relations between

the parents and child.

RIGHTS AND OBLIGATIONS INVOLVED UNDERPHILIPPINE LAWS INCLUDE:

1. Personal Care2. Parental Authority3. Provide for Education4. Reciprocal Support

LAWS REGULATING RELATIONS BETWEENILLEGITIMATE CHILDREN

Relations between the mother and the illegitimatechild are governed by the mothers personal law.

If the child is later legitimated, personal law of thechild follows that of the father.

RIGHTS OF AN ILLEGITIMATE CHILD1. To use the surname of the mother2. To Support3. To Legitime

ADOPTION

Adoption an act which renders a child legitimatein relation to the adopting parents, to whom the child

may or may not be related.Legitimation is the act by which a person not bornlegitimate, is placed upon the same footing as alegitimate child.

1. Jurisdiction to Grant Adoption ThePhilippineCourtsshall have jurisdiction to grant petition foradoption but must apply the lex fori with respectto procedural matters.

2. Capacity of Aliens to Adopt According toSalonga, the cumulative substantiverequirements of the forum and of the national lawof the adopter must be complied with.


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3. Effects or Consequences of Adopt ion 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 ThePhilippines recognizes the principle of foreignadoptions validly rendered and recognized whereeffected. However, such adoption is still subjectto municipal law i.e. the obligation to register saidadoption in the civil registry. EXCEPTION, suchadoption shall not be recognized if it is contrary topublic policy or residents interest forbids itsenforcement (Agpalo)

CHAPTER 12: RULES ON PROPERTY

RULES ON REAL 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 lawintended 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 DIFFERENT KIND OFTRANSFERS:

1. Voluntary transfers of interests in chattels(other than assignment for the benefit ofcreditors) validity and effect of conveyance asbetween the parties are determined by the locallaw of the State which, with respect to theparticular issue, has the most significantrelationship to the parties.

2. Acquisiti ons of title by operation of law (e.g.acquisition by prescription or adversepossession, validity and priority of attachments,levied of execution, statutory liens) governed bylex situs.

TANGIBLE PERSONAL PROPERTY(CHOSES IN POSSESSION)

FACTUAL SITUATION POINT OF CONTACT

Law of the flag (or in somecases, place of registry)

Means ofTransportation

Vessels

Other means Law of the depot (storageplace for supplies orresting place)

Law of the destination(Article. 1753, CC)Locus regit actum (whereseized) because saidplace is their temporary

situs

Things in transitu(these things have achanging statusbecause they move)

Loss, destruction,deterioration

Validity & effect of theseizure of the goods

Disposition or alienageof the goods

Lex loci volutantis or lexloci intentionis becausehere there is a contract

INTANGIBLE PERSONAL PROPERTY

INTANGIBLE PERSONAL PROPERTY (CHOSES INACTION)

FACTUAL SITUATION POINT OF CONTACT

Recovery ofdebts orinvoluntary

assignment ofdebts(garnishment)

Where debtor may beeffectively served withsummons (usually the

domicile)

Voluntaryassignment ofdebts

Lex loci voluntatis or lexloci intentionis (proper lawof the contract)

Taxation of debts Domicile of creditorAdminist rat ion ofdebts

Lex situs of assets of thedebtor (for these assetscan be held liable for thedebts)

Negotiability or

non-negotiabilityof an instrument

The right embodied in the

instrument (for example, inthe case of a Swedish billof exchange, Swedish lawdetermines itsnegotiability)

Validity oftransfer, deliveryor negotiation ofthe instrument

In general, situs of theinstrument at the time oftransfer, delivery ornegotiation

Effect on acorporation of the

Law of the placeincorporation


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sale of corporatesharesEffect betweenthe parties of thesale of corporate

shares

Lex loci voluntatis or lexloci intentionis (proper lawof the contract) for this is

really a contract; usuallythis is the place where thecertificate is delivered)

Taxation on thedividends ofcorporate shares

Law of the place ofincorporation

Taxation on theincome from thesale of corporateshares

Law of the place where thesale was consummated

Franchises Law of the place thatgranted them

Goodwill of the

business &taxation thereto

Law of the place where the

business is carried on

Patents,copyrights,trademarks, tradenames

In the absence of a treaty,they are protected only bythe State that grantedthemNOTE: foreigners may suefor infringement oftrademarks and tradenames in the RP ONLY IFFilipinos are grantedreciprocal concessions inthe State of the foreigners

CHAPTER 13: WILLS, SUCCESSION &ADMINISTRATION OF CONFLICT RULES

EXTRINSIC VALIDITY OF WILLS

Deals with the forms and solemnities in themaking of wills.

GOVERNING LAWS

1. If the Testator is a FILIPINOa. Executed in Philippines Philippine lawb. Executed in foreign country

i. Lex nationaliiii. Lex loci celebrationis (Article 817)

2. If the Testator is an ALIENa. Executed in the Philippines

i. Lex nationaliiii. Lex loci celebrationis (Article 815)

b. Executed abroadi. Lex nationalii

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

NOTE: Joint wills executed by Filipinos whether

in the Philippines or abroad, even thoughauthorized by the foreign country which they mayhave been executed, shall not be valid in thePhilippines (Art. 819 Civil Code).This prohibitiononly applies to Filipino nationals. The validityof a will as to its form depends upon theobservance to the law in force at the time it ismade.

INTRINSIC VALIDITY OF WILLS

It concerns itself with the order of succession, theamount of successional rights, and the intrinsicvalidity of the provisions of the will. It is governedby the national law of the person whose will isunder consideration in force at the time ofdeath.

Capacity to succeed law of the nation of thedecedent (Art. 1039, Civil Code)

THEORIES ON THE PROPER LAW FOR THETRANSMISSION OF SUCCESSIONAL RIGHTS

1. Unitary or single system one law governs thetransmission of BOTH real and personal property.

2. Split or scission system one law governs real

property while another determines successionalrights to personal property.

Caduciary rights refer to the right of the state toclaim thru escheat proceedings the properties withinits territory of a decedent when the decedent is notsurvived by any heirs.

REVOCATION OF WILLS

1. Done in the Philippines - Lex loci actus (of therevocation) (Article. 829)

2. Doneoutside of thePhilippines:a. By a non-domiciliary

i. Lex loci celebrationis (of the making ofthe will, NOT revocation)

ii. Lex domicilii (Article 829)b. By a domiciliary of the RP

i. Lex domicilii (RP law)ii. Lex loci actus (of the revocation) (Article

17)

PROBATE OF WILLS


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If the will is not yet probated abroad, Lex fori ofthe RP applies as to the procedural aspects, i.e.,the will must be fully probated here and dueexecution must be shown.

If the will is already probated abroad, lex fori ofthe RP again applies as to the proceduralaspects. Although it has been probated abroad,the will must also be probated here, but insteadof proving due execution, generally it is enoughto ask for the enforcement here of the foreign

judgment on the probate abroad.

EXECUTORS AND ADMINISTRATORS

1. The executor is qualified, and the administrator isappointed, by the Court of the place where thedeceased was domiciled at the time of death; orin the case of a non-domiciliary, where the assetsor properties of the deceased are found.

2. Their rights, powers and obligations are co-extensive with the qualifying of the appointingcourt powers may only be exercised within theterritorial jurisdiction of the court concerned.

NOTE: these rules also apply to principal,domiciliary, or ancillary administrators & receiverseven in non-successive cases

CHAPTER 14: RULES ON CONTRACTS

EXTRINSIC VALIDITY OF CONTRACTS

Governed by lex loci celebrationis EXCEPTIONS:1. Alienation & encumbrance of property - Lex situs

(Article 16 [1])2. Consular contracts - Law of the RP (if made in

RP consulates)

The rule on validation especially becomessignificant in cases involving multi-states contactsand there is difficulty determining where exactlythe contract has been celebrated.

INTRINSIC VALIDITY OF CONTRACTS

1. The intrinsic validity of contracts including the

interpretation of the instruments, and amount ofdamages for breach is governed by the properlaw of the contract lex contractus (in the broadsense), meaning the lex voluntatis or lex lociintentionis .

NOTE: The parties may stipulate that thecontract be governed by a specific law, such willbe recognized (lex loci intentionis) subject to thelimitation that it is not against the law, morals andpublic policy of the forum and it must bear asubstantive relationship to the transaction.

2. If there is no effective choice of law thegoverning the law of the State with the mostsubstantial connection with the transaction andthe parties.

The contacts to be taken into account indetermining the applicable law to an issue are theff:a. Place of contractingb. Place of negotiationc. Place of Performanced. The location of the subject matter of the

contracte. The domicile, residence, nationality, place of

incorporation and place of business of theparties.

VCEPI v. Philippine Gurantee The Philippineshas no express Conflict rules regarding the intrinsicvalidity of contracts. The SC held that in suchinstances, the party may apply the law expresslyagreed upon by the parties or the law intended by

the parties to govern their transactions. The lexintentionis may be inferred from the nationality of theparties, their residence, place of performance, etc. Inthis case, the parties did not agree upon on whichlaw shall apply. Hence, the SC applied the law withthe most substantial connection to the transaction.Absent any proof of the law of the proper state, theSC applied the doctrine of processual presumption,that such law is the same as the law of the forum.

Rule on Validation parties entering into a contractupon equal terms intended their agreement to bebinding, and the law will give effect on their intentwhenever it can do so under any law whoseapplication the parties can be reasonably be

assumed to have taken into account.

CAPACITY TO ENTER INTO CONTRACTS

PHILIPPINE RULE: the capacity of the

contracting parties is governed by theirrespective national laws.

EXCEPTION: In alienation and encumbrance ofproperty, the capacity of the contracting partiesare governed by the lex situs (Art. 16 (1))

The doctrine of estoppel may be invoked in casea party incapacitated to enter into a contractunder his national law later invokes such law toevade his obligations. PROVIDED:The otherparty entered the contract in good faith.

The Courts must uphold the Justified


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Expectations of the Party, especially in caseswhere the national laws of the parties areincidental or without substantial connection to thecontract.

OTHER THEORIES ON CAPACITY1. Lex loci celebrationis (defect: this makespossible the evasion of the national law)

2. Lex nationalii (defect: this may impedecommercial transactions)

3. Lex loci solutionis (law of the place ofperformance) (defect: there may be severalplaces of performance

4. Prof Minors solution:

Perfection lex loci celebrationis

Cause or consideration lex lociconsiderations

Performance lex loci solutionis (defect: thistheory combines the defect of the others)

CHOICE OF LAW ISSUES IN CONFLICTSCONTRACT CASES

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 belitigated in the forum chosen by the parties if thechoice of the forum clause specifically identifies itas the only venue.

When there is no fraud or overreaching, andthere is no showing that the choice of forumclause would be unreasonable and unjust, theclause must be given effect.

2. Contracts with Arbitration Clause Many courts apply to arbitration agreements the

law of whatever place the parties have

designated as governing, thus sustaining theiragreement to arbitrate.

3. Adhesion Contracts

When there is no proof of arbitrariness, abuse ofpower, or gross negligence, the contract orstipulation will be enforced.

4. Special Contracts (Please Refer to ConflictsTable 1)

CHAPTER 14: TORTS

As a general rule, the liability and damages fortorts are governed by Lex loci delicti (law of theplace where the delict was committed)

CHARACTERIZATION OF THE PLACE OFWRONG (locus delicti)

1. Common law theory looks to the place wherethe last event necessary to make an actor liablefor an alleged tort occurs (where the injury issustained)

2. Civil law theory view the situs of torts as theplace where the tortuous act was committed.

OBLIGATION THEORY

The tortuous act gives rise to an obligation, whichis transitory and follows the person committingthe tortuous act and may be enforced whereverhe may be found.

MODERN THEORIES IN TORT LIABILITY

1. Doctrine of Elective Concurrence Either thelaws of the state where the actor engaged in hisconduct and where the injury was incurred maybe invoked.

2. Theory of Most Significant Relationship Theapplicable law shall be the law of the countrywhich has the most significant relationship to the

situation. In determining the state which has themost significant relationship, the following factorsare to be taken into account:

Pakistan International Airlines v. Ople TheSupreme Court held that where the relationshipbetween the parties is affected with public interestand the multiple and substantive contacts of thecontracts are with Philippine law, Philippine Courtsand agency may not be ousted of their jurisdiction.

a. place where the injury occurredb. place of conduct causing the injuryc. domicile, residence, nationality, place of

incorporation and place of businessd. place where relationship between the parties

is centered3. 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 aninterest 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 inupholding its tort law.

ii. If Disinterested forum Dismiss on theground of Non Forum Conveniens.

4. Cavers Principle of Preference guideline onwhich rules on torts may be applied by States inabsence of statutory provision:


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a. Where the State of Injury provides for higherstandard of conduct or financial protectionagainst injury than the State where thetortious act was done, the law of the formershall govern.

b. Where the State of injury and conductprovides for lower standard of conduct andfinancial protection than the home State ofthe person suffering the injury, the law of theState of conduct and injury shall govern.

c. Where the State in which the defendant hasacted has established special controls overconduct of the kind in which defendant wasengaged, the special controls and benefitsmust be applied although the State has norelationship to the defendant.

d. Where the law in which the relationship hasits seat imposed higher standard of conductor financial protection than the law of theState of the injury, the former law shallgovern.

CONDITIONS FOR THE ENFORCEMENT OF TORTCLAIMS

The tort is not penal in character

If the enforcement of the tortious liability wontcontravene our public policy

If our judicial machinery is adequate for suchenforcement

PHILIPPINE RULE

Salonga suggests for the following methodologyin solving Torts Problems in the Phils:a. Ascertain and weigh the purpose underlying

the tort law of the forum. If the Tort law of thePhilippines embodies a social or economicpolicy, then the law of the forum on Tortsshall be applied.

b. If the Philippines has no concern or interestin the application of the internal law and theother States have interest, apply the law ofsuch state.

NOTE: the State where an injury has occurredhas interest in compensating the injured party.

Whereas, the State where the actor has actedhas interest in regulating the conduct of personsfound in its territory.

SPECIAL RULES

1. If the tort is committed aboard a public vessel,whether on the high seas or in foreign territorialwaters, the country to which the vessel belongs isthe locus delicti; the law of the flag is thus the lexloci delicti commissi.

2. If the tort takes place aboard a private ormerchant vessel on the high seas , the law ofthe flag is likewise the lex loci delicti commissi.

3. If the tort concerns property, whether real orpersonal, the lex situs is usually also the lex loci

delicti commissi.4. Maritime tortsa. if the colliding vessels are of the same state, or

carry the same flag, said law is the lex locidelicti commissi

b. if the vessels come from different states,whose laws however, on the matter areidentical, said laws constitute the lex loci delicticommissi.

c. if the vessels come from different states withdifferent laws, the lex loci delicti commissi isthe general maritime law as understood andapplied by the forum where the case is tried.

Le Forest v. Tolman In order to successfullymaintain an action of tort, the act which is thecause of the injury and the foundation of theaction must at least be actionable orpunishable by the law of the place in which itwas done, if not also by the law of the place

CHAPTER IV: CRIMES

GENERAL RULE: The essential elements of acrime and its penalties are generally determinedby the law where the crime was committed (locusregit actum).

EXCEPTIONS:1. crimes committed by state officials, diplomatic

representatives and officials of recognizedinternational organizations (based on the theoryof state immunity from suits)

2. crimes committed on board a foreign vessel evenif within the territorial waters of the coastal state,as long as the effect of such crime does notaffect the peace and order of the coastal state

3. crimes which, although committed by Philippinenationals abroad are punishable under the locallaw pursuant to the protective principle ofcriminal

jurisdiction (ie.e. Art 2 of the RPC)

THEORIES AS TO WHAT COURT HASJURISDICTION

1. Territoriality theory where the crime wascommitted

2. Nationality theory country which the criminal


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is citizen or a subject3. Real theory any State whose penal code has

been violated has jurisdiction, where the crimewas committed inside or outside its territory

4. Protective theory any State whose national

interests may be jeopardized has jurisdiction sothat it may protect itself5. Cosmopolitan or universality theory State

where the criminal is found or which has hiscustody has jurisdiction

6. Passive personality theory the State of whichthe victim is a citizen or subject has jurisdiction

NOTE: In the Philippines, we follow theterritoriality theory in general. Hence, our penallaws apply only to crimes committed within thecountry.

EXCEPTION: Article 2 RPC, stresses theprotective theory:a. Offense committed while in a Philippine

vessel or airship.b. Forging or Counterfeiting any coin currency

note of the Philippines, or any obligationissued by the government.

c. Introduction into the country of theabovementioned obligations and securities.

d. While being public officers and employees,any offense committed in the exercise of theirfunctions.

e. Crimes against national security and the Lawof the nations as defined in Title 1 Book ofthe RPC.

THE LOCUS DELICTI OF CERTAIN CRIMES

Frustrated andconsummated,homicide,murder,infanticide &parricide

Where the victim was injured (notwhere the aggressor wielded hisweapon)

Attemptedhomicide, etc.

Where the intended victim was(not where the aggressor wassituated) so long as the weaponor the bullet either touched him or

fell inside the territory where hewas

Bigamy Where the illegal marriage wasperformed

Theft &robbery

Where the property wasunlawfully taken from the victim(not the place to which thecriminal went after thecommission of the crime)

Estafa orswindling thru

Where the object of the crime wasreceived (not where the false

falserepresentation

representations were made)

Conspiracy tocommit treason,rebellion, or

seditionNOTE: Otherconspiraciesare NOTpenalized byour laws

Where the conspiracy was formed(not where the overt act oftreason, rebellion or sedition was

committed)

Libel Where published or circulatedContinuingcrime

Any place where the offensebegins, exists or continues

Complex crime Any place where any of theessential elements of the crimetook place

CHAPTER XV: BUSINESS ASSOCIATIONS

CORPORATIONS

FACTUALSITUATION

POINTS OF CONTACT

Powers andliabilities

General rule: the law of theplace of incorporationExceptions:

For constitutionalpurposes even if thecorporation was

incorporated in the RP, itis not deemed a Filipinocorporation & thereforecant acquire land,exploit our naturalresources, and peratepublic utilities unless60% of capital if Filipinoowned

For wartime purposes we pierce thecorporation veil & go tothe nationality of thecontrolling stockholdersto determine if thecorporation is an enemy(CONTROL TEST)

Formation of thecorporation(requisites); kindof stocks, transferof stocks to bindthe corporation,issuance, amount

Law of the place ofincorporation


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& legality &dividends, powers& duties ofmembers,stockholders and

officersValidity ofcorporate acts &contracts(including ultravires acts)

Law of the place ofincorporation & law ofthe place of performance(the act or contract mustbe authorized by BOTHlaws)

Right to sue &amenability tocourt processes &suits against it

Lex fori

Manner & effectof dissolution

Law of the place ofincorporation provided

that the public policy ofthe forum is not militatedagainst

Domicile If not fixed by the lawcreating or recognizingthe corporation or by anyother provision thedomicile is where it islegal representation isestablished or where itexercises its principalfunctions (Article. 15)

Receivers(appointment &powers)

Principal receiver is

appointed by the courtsof the State ofincorporation; ancillaryreceivers, by the courtsof any State where thecorporation has assets(authority is CO-EXTENSIVE) w/ theauthority of theappointing court

THEORIES ON THE PERSONAL AND/ORGOVERNING LAW OF CORPORATIONS:

1. Law of the place of incorporation this isgenerally the rule being adhered to by thePhilippines.

EXCEPTIONS:a. Exploration and Exploitation of Natural

resourcesb. Mediac. Wartime Ruled. Piercing of Corporate Veil

2. Law of the place or center of management

(center for administration or siege social) (centeroffice principle)

3. Law of the place of exploitation (exploitationcentre orsiege d exploitation)

WHEN DOES THE PERSONAL LAW OF THECORPORATION GOVERNS?1. requisites for formation of the corporation and its

legal character2. The capacity and powers of the corporation: Note

however that two questions should be asked indetermining the legal effect of an act of acorporation: First, is the corporation authorizedby its charter to do the particular act? Second, isthis act permitted by the law of the place wherethe act is done?

3. Kinds of stocks allowed and transfer of stocks ina 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 ofshareholders, members, directors, officers, theirrelations inter se, and stockholders participationin the management and in the profits.

6. Alteration or modification of the charter and thedissolution of the corporation.

PHILIPPINE JURISDICTION OVER FOREIGNCORPORATIONS

Consent doctrine a foreign corporation will berecognized 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 doingbusiness here in the Philippines shall be boundby all laws, rules and regulations applicable todomestic corporations EXCEPT provisions for thecreation, formation, organization or dissolution ofcorporations or those which fix the relations andliabilities or duties of the stockholders, membersor 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 orauthorized to transact business in the Philippines,it cannot be permitted to maintain or intervene inany action, suit or proceeding in any court oradministrative agency of the Philippines BUT itcan be sued before any court or administrativetribunals on a valid cause (Sec. 133 of CorpCode).

EXCEPTIONS:1. Isolated transactions2. action to protect trademark, trade name, goodwill,


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patent or for unfair competition3. agreements fully transacted outside the

Philippines4. petition filed is merely a corollary defense in a

suit against it

5. In case of Estoppel. A person who enters into acontract with a foreign corporation and receivesbenefits from the contract is estopped fromsetting up the failure of said corporation tocomply with the requirements for doing business,in order to avoid liability.

MULTI-NATIONAL CORPORATIONS

Cluster of corporations of diverse nationalitiesjoined together by ties of common ownership andresponsive to a common management strategy.

J urisdiction over a local counterpart may amountto jurisdiction on the parent company if the localcounterpart is only a branch and is withoutseparate juridical personality from the mothercompany 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, jurisdictionover the local counter-part is not jurisdiction overthe parent company.

NOTE: A subsidiary is one which is incorporatedseparately from the mother company, thusobtaining its own juridical personality.

PARTNERSHIPS

FACTUAL SITUATION POINTS OF CONTACTThe existence or non-existence of legalpersonality of the firm;the capacity tocontract; liability ofthe firm & the partnersto 3

rdpersons

The personal law ofthe partnership, i.e.,the law of the placewhere it was created(Article 15 of the Codeof Commerce)(Subject to theexceptions givenabove as in the caseof corps.)

Creation of branchesin the RP; validity &effect of the branchescommercialtransaction; & the

jurisdiction of thecourt

RP law (law of theplace where brancheswere created) (Article15, Code ofCommerce)

Dissolution, windingup, & termination ofbranches in the RP

RP law (Article 15,Code of Commerce)

Domicile If not fixed by the lawcreating or recognizingthe partnership or byany other provision the domicile is where itis legal representationis established orwhere it exercises itsprincipal functions(Article. 15)

A corporation is doing business when it iscontinuing the body or substance of the business orenterprise for which it was organized. The termimplies a continuity of commercial dealings andarrangements and contemplates, to that extent, theperformance of acts and works or the exercise ofsome of the functions normally incident to, and in

progressive prosecution of, the purpose andobjective of its organization.

Documents

23322069 Conflict of Laws