CONFLICT OF LAWS(Private International Law)

DEFINITION

“Private International Law” or “Conflict of Laws” is that part of the law of each State which determines whether in dealing with a factual situation involving a foreign element, the law or judgment of some other State will be recognized or applied in the forum.

WAYS OF DISPOSING CONFLICTS CASES dismiss the case, either because of lack

of jurisdiction or refusal to assume jurisdiction

assume jurisdiction and apply the internal law of the forum (lex forum)

assume jurisdiction and take into account and apply the law of another State

A. Jurisdiction

Judicial jurisdiction- the legal authority of the State to exercise authority, through its courts and agencies to hear and adjudicate cases

Types of Judicial Jurisdiction1. Jurisdiction over the SM2. Personal Jurisdiction 3. Jurisdiction over the res

Jurisdiction over the SM- the power to hear and determine cases of the general class to which the proceedings in question belong and is conferred by the sovereign authority which organizes the court and defines its powers

Personal jurisdiction- the competence of the court to render a decision that will bind the parties to a suit.

Bases of personal jurisdiction:1. presence2. domicile3. residence4. nationality5. consent6. appearance in an action7. doing business in a State8. an act done in the State9. causing an effect in the State by an act done

elsewhere10. ownership, use or possession of a thing in the State11. other relationships to the State which make the

exercise of judicial jurisdiction reasonable

Jurisdiction over person of the plaintiff- acquired from the moment he invokes the aid of the court

Jurisdiction over the person of the defendant- acquired thru: voluntary appearance, personal or substituted service of summons

Jurisdiction over the res- or over the particular matter in controversy, regardless of the persons who may be interested therein. Action in rem- purpose of the suit is NOT to

impose personal liability but to AFFECT interests of ALL persons in a thing.

Quasi in rem- purpose is neither to impose a personal liability or obligation upon anyone, nor to affect the interest of all persons in a thing but to AFFECT the interests of PARTICULAR persons in a thing.

Basis of jurisdiction: presence of minimum contacts (“minimum contacts” is necessary so as not to offend due process) (Int’l Shoe Co. v. State of Washington)

In Sum: A State does not have jurisdiction in the absence of some reasonable basis for exercising it. To be reasonable, the jurisdiction must be based on some minimum contacts that will not offend due process.

The principle of forum non conveniens

Here, the court has jurisdiction but it refuses to exercise the same because of any of the following reasons:1. belief that the matter can be tried and decided

elsewhere either because the main aspects of the case transpired in a foreign jurisdiction or the material witnesses have their residence there

2. the belief that the non-resident plaintiff sought the forum merely to secure procedural advantages or to annoy or harass the defendant

3. unwillingness to extend local judicial facilities to non-residents or aliens when the docket may already be overcrowded;

4. the inadequacy of the local judicial machinery for effectuating the right sought to be maintained; and

5. the difficulty of ascertaining the foreign law. (Gulf Oil Corp. v. Gilbert)

What constitutes a “most convenient forum”?

Three factors have to be considered:1. whether the forum is one to which the

parties may conveniently resort2. whether it is in a position to make an

intelligent decision as to the law and the facts

3. whether it has or is likely to have power to enforce its decision (“principle of effectiveness”).

B. Application of Internal or Domestic Law There are three groups of instances when the

forum has to apply the internal or domestic law:

1. where application of the domestic law is decreed (eg. Laws on property; hereditary succession)

2. where there is failure to plead and prove foreign law

3. where a case involves any of the exceptions to application of foreign law.

How to prove foreign law? If written: it may be evidenced by an official

publication thereof or by a copy attested to by the officer having the legal custody of the record and must be accompanied by a certificate that such officer has the custody. Certificate may be made by the Secretary of the Embassy, legation or consulate, consul-general, consul, vice consul and has to be authenticated by the seal of his office.

How to prove foreign law?If unwritten: must be proved by expert

testimony or by printed and published books or reports of decisions of the country involved, if proved to be commonly admitted in such courts.

Exceptions to the application of foreign law:1. when the enforcement of foreign law would

run counter to an important public policy of the forum;

2. where the application of foreign law would infringe on good morality as understood in the forum;

3. when the foreign law is procedural in nature;4. where the question involves immovable

property in the forum;

Exceptions to the application of foreign law:

5. where the foreign law is fiscal or administrative in nature;

6. where the application of foreign law would involve injustice or injury to the people of the forum;

7. where the application of foreign law would endanger the vital interests of the State

C. Application of Foreign Law: Theories on the Choice of law

1. Comity- courtesy of one State towards another. sometimes called the principle of reciprocity doctrine of retaliation: reciprocity employed

with a note of vengeance (this was also applied in the Hilton case because the court said that the court in the US need not give the judgment rendered by the French court conclusive effect because there was no reciprocity on the part of France)

Hilton v. Guyot“Comity, in the legal sense, is neither a matter of absolute obligation on the one hand, nor of mere courtesy and goodwill, upon the other. But it is the recognition which one nation allows within its territory, to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of it own citizens, or of other persons who are under the protection of its laws.”

2. Protection of vested rights theory the function of Conflict of laws is to give effect to rights

acquired under the proper foreign law, and not to enforce foreign law.

MacDonald v. Railway“When a right is claimed upon acts occurring in another country, courts look to the law of the country, not to extend the binding force of a foreign law beyond the territorial limits of the sovereignty to which it belongs… It is not the foreign law but the rights acquired under it which are enforced by the courts in another country.”

Loucks v. Standards Oil Company of New York“A foreign statute is not law in this state, but it gives rise to an obligation, which, if transitory, ‘follows the person and may be enforced wherever the person may be found.’ No law can exist as such except the law of the land; but it is a principle of every civilized law that vested rights shall be protected.”

(UNLESS the enforcement of the right is contrary to public policy)

3. Local Law Theory- application of local law by analogy

Guinness v. Miller“No court can enforce any law but that of its sovereign and, when a suitor comes to a jurisdiction foreign to the place of tort, he can only invoke an obligation recognized by the sovereign. A foreign sovereign under civilized law imposes an obligation of its own as nearly homologous as possible to that arising in the place where the tort occurs.”

4. Modern theories:a) The law of the Most Significant Relationship

Theory- the location of one single most significant factor in

an event or transaction should identify the State or territorial jurisdiction whose law should govern the transaction.

e.g.1. land questions were to be governed by the law of

the place where the land is located2. tort questions by the law of the place of wrong3. procedural questions by the law of the forum4. contract questions by the law of the place where

the contract was madeb) State-interest theory

c) Principle of Preference- choice of law should not be the result of the

automatic operation of a rule or principle of selection but of a search for a “just decision”

d) Functional Approach- the approach aims at solutions that are “the

rational elaboration and application of the policies and purposes underlying specific legal rules and the legal system as a whole.”

e) Choice-influencing considerations- Five Basic Considerations:1. predictability of results2. maintenance of interstate and international

order3. simplification of the judicial task4. advancement of the forum’s governmental

interests5. application of the better rule of law

f) Comparative Approachg) Convenient Forum Theory- forum non conveniensh) Harmony of Treatment and Uniformity of Result

Theory- equal justice under the law requires the decision

be the same wherever the claim is brought. A conflict problem should receive the same treatment and disposition wherever the forum may happen to be.

II. Ascertainment and Proof of Foreign LawHow is the foreign law proved?

Under Philippine procedural rules, a distinction is drawn between written and unwritten law.

Written law may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and must be accompanied with a certificate that such officer has custody. The certificate may be made by a secretary of embassy or legation, consul general, consul, vice-consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office.

Williamette Iron and Steel Works v. MuzzalDoes not exclude the presentation of other competent evidence to prove the existence of a foreign law.

Unwritten lawWhere the foreign law sought to be proved

is “unwritten”, the oral testimony of expert witnesses is admissible, as are printed and published books of reports of decisions of the courts of the country concerned if proved to be commonly admitted in such courts.

B. Effect of Failure to plead to prove foreign law1. Dismiss a case, with judgment for the defendant, on the

theory that the plaintiff relying on foreign law had failed to prove an essential part of his case. (Walton v. Arabian American Oil)

2. Not to dismiss the case, but to hold that where the foreign law is not properly pleaded or proved, the presumption of identity or similarity arises—that the foreign law is the same as the domestic law (processual presumption) (Miciano v. Brimo)

3. Not to dismiss the case, but to assume that by failing to plead or prove foreign law, the parties acquiesced in having their controversy determined by the law of the forum.

C. Exceptions to the Application of Foreign LawHome Insurance Co. v. Dick The SC of the US held that it is a violation of due

process for a State to strike down a defense under a foreign law as being contrary to its public policy if the State has no reasonable relationship to the transaction and the parties.1. where the enforcement of foreign law would run counter

to some important public policy of the forum2. when its application would lead to an infringement of

good morality in the wider sense of the term, as understood in the forum;

3. when the foreign law is penal in nature4. when the foreign law is procedural in nature5. when the question relates to immovable

property in the forum6. when the foreign law is fiscal or administrative

in nature7. when the application of foreign law would

endanger the foreign relations or vital interests of the State

(NOTE: exceptions are not mutually exclusive)

III. Nature of Conflict Rules and the Problem of Characterization

A. Nature of conflict rulesHave 2 parts: Factual Relationship (factual events and

operative facts)Connecting factor or point of contact (e.g.

situs of the res, place of performance, place of wrongdoing)

B. Test factors or points of contact

In every set of facts, one or more circumstances are present which may serve as the possible tests for the determination of the applicable law.e.g. A Filipino, domiciled in the US, makes a will in France and dies leaving immovable property in China.

The circumstances that may turn out to be decisive are: his nationality, his domicile, French locus actus (place of acting), Chinese situs rei (place of the thing).

These circumstances are called “test factors” or “points of contact” or “connecting factors”

Examples of these “points of contacts”1. The nationality of a person, his domicile, his

residence, his place of sojourn, or his origin2. The seat of a legal or juridical person, such as a

corporation3. The situs of the thing4. locus actus, the place where the act was done5. the place where an act is intended to come into

effect (e.g. place of performance of contractual duties)

6. lex loci intentionis (intention of the contracting parties)

7. lex fori (place where the judicial or administrative proceedings are instituted)

8. the flag of the ship (nationality of ships)

C. The problem of characterization

“Characterization” or “qualification” or “classification” is the process of assigning a disputed question to its correct legal category.

Three stages in characterization:1. problem of classification- determine first

whether the question relates to contracts, torts, property, succession, etc.

who will determine this? the forum State2. characterization of the “point of contact” (forum

State)3. extent of the application or the “delimitation” of

the law that is chosen as applicable to the conflicts case.

IV. Specific Conflicts Points of Contact

A. Nationality1. Determination of Nationality

The Hague Convention of 1930 on Conflict of Nationality Laws laid down 2 important rules on this point:

1. It is for the municipal laws of each State to determine who are the nationals of each State;

2. Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the laws of that State.

2. Acquisition and Loss of Nationality

Modes of Acquiring nationality:1. Birth (jus sanguinis or jus soli)2. Naturalization (grant of citizenship upon application

or by some act which would qualify an individual for a new nationality)

3. Repatriation (recovery of the original nationality upon fulfillment of certain conditions)

4. Subjugation (political changes that result in the establishment of new relations between the inhabitants of the territory and the new sovereign- same as in cession)

5. Cession

Nationality is lost by any of the following modes:

1. Release (Germany allows its citizens to ask for release from their nationality)

2. Deprivation (States may deprive their citizens of nationality upon entry into the military service of a foreign power)

3. Expiration (may become the result of prolonged stay abroad without any indication of a desire to return)

4. Denunciation (a person repudiates his nationality in favor of another)

5. Substitution (lost of nationality ipso facto by naturalization)

3. Dual or Multiple Nationality

- arises because of a) the concurrent application of jus soli and

jus sanguini at birth; orb) from the refusal of certain States to

accept a full application of the doctrine of expatriation; or

c) marriage; ord) as a result of some formal and voluntary

act

In cases where a person is a national of two or more countries but litigation arises in a third country, the law most consistently applied is that of the country of which the person is not only a national but where he also has his domicile or habitual residence, or in the absence thereof, his residence.

But in Public International Law, the “effective nationality” link is used.

4. Stateless Persons

Convention Relating to the Status of Stateless Persons- contracting parties shall as far as possible facilitate the assimilation and naturalization proceedings and to reduce as far as possible the charges and cost of such proceedings.

5. States with composite system of law

2 kinds of composite lawa) the composite law on personal basis

(e.g. determined by religion, class or race, such as India, where there are different law for Buddhists, Hindus, etc.)

b) composite law based on territorial basis such as the U.S.

6. Aliens married to Filipinos

Moy Yu Lim Yao vs. Commissioner of Immigration (No. L-21289, October 4, 1971, 41 SCRA 292)

Held that an alien woman who marries a Filipino citizen ipso facto becomes a Filipino provided she is not disqualified to be a citizen of the Philippines under Section 4, Commonwealth Act No. 473, and reiterated the rule that "a judicial declaration that the person is a Filipino citizen cannot be made in a petition for naturalization and that, in this jurisdiction there can be no independent action for the judicial declaration of citizenship of an individual."

BUT in Yung Uan Chu v. Republic (GR L-34973, 14 April 1988)

“An alien woman married to a Filipino citizen does not necessarily acquire Philippine citizenship. She must prove in an appropriate proceeding that she does not have any disqualification for Philippine citizenship.

This rule also applies even if her husband is a native born Filipino. (Austria et al. v. Conchu, L-20716, June 22, 1965, 14 SCRA 336; 121 Phil. 1148)”

What is the procedure then? In Moy Ya Lim Yao (41 SCRA 292-388) the Court adverted

to the administrative procedure which up to the present is followed in the Commission of Immigration and Deportation. The steps to be taken by an alien woman married to a Filipino for the cancellation of her alien certificate of registration are embodied in Opinion No. 38, series of 1958 of then Acting Secretary of Justice Jesus G. Berrera to the effect that "The alien woman must file a petition for the cancellation of her alien certificate of registration alleging, among other things that she is married to a Filipino citizen and that she is not disqualified from acquiring her husband's citizenship pursuant to section 4 of Commonwealth Act No. 473, as amended. Upon the filing of said petition, which should be accompanied or supported by the joint affidavit of the petitioner and her husband to the effect and thus secure recognition of her status as a Filipino citizen. Judicial recourse would be available to the petitioner in a case of adverse action by the Immigration Commissioner.

7. Who are citizens of the Philippines?

ARTICLE IVCitizenshipSECTION 1. The following are citizens of the Philippines:(1) Those who are citizens of the Philippines at the time

of the adoption of this Constitution;(2) Those whose fathers or mothers are citizens of the

Philippines;(3) Those born before January 17, 1973, of Filipino

mothers, who elect Philippine citizenship upon reaching the age of majority; and

(4) Those who are naturalized in accordance with law.

SECTION 2. Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship. Those who elect Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-born citizens.SECTION 3. Philippine citizenship may be lost or reacquired in the manner provided by law.SECTION 4. Citizens of the Philippines who marry aliens shall retain their citizenship, unless by their act or omission they are deemed, under the law, to have renounced it.SECTION 5. Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law.

REPUBLIC ACT NO. 9225- "Citizenship Retention and Re-acquisition Act of 2003." SECTION 3. Retention of Philippine Citizenship. — Any provision of law to the contrary notwithstanding, natural-born citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have re-acquired Philippine citizenship upon taking the following oath of allegiance to the Republic… xxx xxxNatural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign country shall retain their Philippine citizenship upon taking the aforesaid oath.

RA 9225 (cont.)SECTION 4. Derivative Citizenship. — The unmarried child, whether legitimate, illegitimate or adopted, below eighteen (18) years of age, of those who re-acquire Philippine citizenship upon effectivity of this Act shall be deemed citizens of the Philippines.

B. Domicile

Importance of Domicile under RP laws: A816, CC:

The will of an alien who is abroad produces effects in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities prescribed in his country, or in conformity with those which this Code prescribes.

A829,CC:A revocation done outside the Philippines, by a person who does not have his domicile in this country, is valid when it is done according to the law of the place in which the testator had his domicile at the time.

Domicile v. Residence

Uytengsu v. Republic“There is a difference between domicile and residence. ‘Residence’ is used to indicate a place of abode, whether permanent or temporary; ‘domicile’ denotes a fixed, permanent residence, to which, when absent, one has the intention of returning. A man may have a residence in one place and a domicile in another. Residence is not domicile, but domicile is residence coupled with the intention to remain for an unlimited time. A man may have one domicile for one and the same purpose at any time, but he may have numerous places of residence. His place of residence generally is his place of domicile, but is not by any means necessarily so, since no length of residence without intention of remaining will constitute domicile.”

Note: our naturalization laws use the terms interchangeably

Basic principles of Domicile:1. No natural person can ever be without a

domicile. (how about those with no permanent residence? Apply “domicile of origin”

2. A person cannot have two simultaneous domiciles.

3. Every natural person, as long as he is free and sui juris, may change his domicile at pleasure.

4. A domicile once acquired is retained unless a new one is gained.

5. The presumption is in favor of the continuance of an existing domicile.

Legal Classification of Domicile1. Domicile of origin2. Constructive domicile3. Domicile of choice

Domicile of origin- domicile of a person’s parents at the time of his birth

Minors- follow the domicile of the father; in case of death of father, domicile of mother

Constructive domicile- (domicilium necessarium) is that domicile established by law after birth in case of persons under legal disability regardless of their intention or voluntary act.

Distinguished from domicile by origin: CD is assigned after birth, while DO is established at

the moment of birth; CD is assigned to persons under legal disabilities,

including infants, while DO only to infants; While there can only be one DO, CD may be changed

from one place to another; DO is less easily abandoned and more easily reverts.

Married women- follows domicile of the husband; in case of death of husband, retains that domicile unless she changes it.

Domicile of choice- place voluntarily chosen by a person sui juris as his home.

C. Renvoi

“referring back” Ways of dealing with the renvoi problem:1. The reference made by the State A conflicts laws to the

laws of State B is confined exclusively to “internal law”. This is usually called “rejecting the renvoi”

2. Reference is to State B law in its entirety (including its conflicts laws) This is usually called “accepting the renvoi”.

3. “Mutual disclaimer of jurisdiction” theory- State A law will refer to State B, but seeing that State B laws do not have provision on properties owned by aliens domiciled in State B, will apply its own law.

Transmission- reference across (e.g. reference to a third state)

D. Personal Status and Capacity

Personal Status- the legal position of an individual in a society

Capacity- his power to acquire and exercise rights

Philippine Conflicts Rule on Personal Status and CapacityA15, CC:

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.

Personal Status

Beginning and End of PersonalityA40, CC: Birth determines personality, but the conceived child shall be considered born for all purposes that are favorable to it, provided, it be born later with the conditions specified in the following article.BUT see Art. 5, P.D. 603 (the Child and Youth Welfare Code):“The civil personality of the child shall commence from the time of his conception, for all purposes favorable to him.”

Death extinguishes personality.

Capacity

GR:Capacity to enter contracts- lex loci contractusCapacity to enter contracts involving immovables- lex loci situs

But a distinction should be made between capacity to enter into transactions involving personal relations and other family matters and capacity to enter into every day business transactions. The first is governed by national law while the other, the law governing contracts as a whole (not automatically lex loci contractus)

E. Marriage and DivorceFormal Validity Locus regit actum- the place governs the act. A17, CC:

The forms and solemnities of contracts, wills, and other public instruments, shall be governed by the laws of the country in which they are executed.

A26, FC:All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they are solemnized, and valid as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5), and (6), 36, 37 and 38.

Substantive Validity A2, FC:

No marriage shall be valid, unless these essential requisites are present:1. legal capacity of the contracting parties who must be a

male and a female; and 2. consent freely given in the presence of a solemnizing

officer. A26, FC:

All marriages solemnized outside the Philippines, in accordance with the laws in force in the country where they are solemnized, and valid as such, shall also be valid in this country, except those prohibited under Articles 35(1), (4), (5), and (6), 36, 37 and 38.

Marriages that are void even when valid under foreign laws: ARTICLE 35.The following marriages shall be void from

the beginning:(1) Those contracted by any party below eighteen

years of age even with the consent of parents or guardians;

(4) Those bigamous or polygamous marriages not falling under Article 41;

(5) Those contracted through mistake of one contracting party as to the identity of the other; and

(6) Those subsequent marriages that are void under Article 53.

ARTICLE 36.A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. (As amended by Sec. 2, E.O. No. 227, July 17, 1987)

ARTICLE 37. Marriages between the following are incestuous and void from the beginning, whether the relationship between the parties be legitimate or illegitimate:(1) Between ascendants and descendants of any degree;

and(2) Between brothers and sisters, whether of the full or half

blood. (81a) ARTICLE 38. The following marriages shall be void from the

beginning for reasons of public policy:(1)Between collateral blood relatives, whether legitimate or illegitimate, up

to the fourth civil degree;(2)Between step-parents and step-children; (3)Between parents-in-law and children-in-law;(4)Between the adopting parent and the adopted child;(5)Between the surviving spouse of the adopting parent and the adopted

child;(6)Between the surviving spouse of the adopted child and the adopter;(7)Between an adopted child and a legitimate child of the adopter;(8)Between adopted children of the same adopter; and(9)Between parties where one, with the intention to marry the other, killed

that other person's spouse or his or her own spouse. (82a)

Divorce2nd par., A26, FC:

“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 likewise have capacity to remarry under Philippine law.”

F. Contracts

FormalitiesCapacityEssential or intrinsic validity

Formalities Governed by lex loci contractus/ celebrationis

A17, CC:The forms and solemnities of contracts, wills, and other public instruments, shall be governed by the laws of the country in which they are executed.

CapacityDistinction should be made between contracts involving family relations and ordinary contracts.

Essential or intrinsic validityNo provision in the Civil Code with

reference to essential or intrinsic validity of contracts in general.

Usually, in contracts, they already provide a provision on applicable law. In the absence of this provision, the applicable law is the law of the country that has the most significant relationship to the transaction and the parties.

Enforcement of Foreign Contract Claims Sec. 48, Rule 39, ROC:

Effect of Foreign Judgments or Final OrdersThe effect of a judgment or final order of a tribunal of a foreign country, having jurisdiction to render the judgment or final order, is as follows:

1. In case of a judgment or final order upon a specific thing, the judgment or final order is conclusive upon the title of the thing;

2. In case of a judgment or final order against a person, the judgment or final order is presumptive evidence of a right as between the parties and their successor-in-interest by a subsequent title.In either case, the judgment or final order may be repelled by evidence of want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact.

R.A. 9285 (Alternative Dispute Resolution Act)B. FOREIGN ARBITRAL AWARDSSECTION 42. Application of the New York Convention. — The

New York Convention shall govern the recognition and enforcement of arbitral awards covered by said Convention.The recognition and enforcement of such arbitral awards shall be filed with the Regional Trial Court in accordance with the rules of procedure to be promulgated by the Supreme Court. Said procedural rules shall provide that the party relying on the award or applying for its enforcement shall file with the court the original or authenticated copy of the award and the arbitration agreement. If the award or agreement is not made in any of the official languages, the party shall supply a duly certified translation thereof into any of such languages.The applicant shall establish that the country in which foreign arbitration award was made is a party to the New York Convention.If the application for rejection or suspension of enforcement of an award has been made, the Regional Trial Court may, if considers it proper, vacate its decision and may also, on the application of the party claiming recognition or enforcement of the award, order the party to provide appropriate security.

SECTION 43. Recognition and Enforcement of Foreign Arbitral Awards Not Covered by the New York Convention. — The recognition and enforcement of foreign arbitral awards not covered by the New York Convention shall be done in accordance with procedural rules to be promulgated by the Supreme Court. The Court may, on grounds of comity and reciprocity, recognize and enforce a non-convention award as a convention award.

SECTION 44. Foreign Arbitral Award Not Foreign Judgment. — A foreign arbitral award when confirmed by a court of a foreign country, shall be recognized and enforced as a foreign arbitral award and not as a judgment of a foreign court.A foreign arbitral award, when confirmed by the Regional Trial Court, shall be enforced in the same manner as final and executory decisions of courts of law of the Philippines.

SECTION 45. Rejection of a Foreign Arbitral Award. — A party to a foreign arbitration proceeding may oppose an application for recognition and enforcement of the arbitral award in accordance with the procedural rules to be promulgated by the Supreme Court only on those grounds enumerated under Article V of the New York Convention. Any other ground raised shall be disregarded by the Regional Trial Court.

G. Torts and Crimes

GR: Lex loci delicti commissi Note that tort gives rise to personal actions and

under Sec. 2, Rule 4 of ROC: Venue of personal actionsAll other actions may be commenced and tried where the plaintiff or any of the principal plaintiffs resides, or where the defendant or any of the principal defendants resides, or in case of a non-resident defendant where he may be found at the election of the plaintiff.

Criminal LiabilityLex loci delicti

Crimes are territorial in nature that is why you can only get relief in the courts of the State where they were committed.

Exceptions: Those recognized in International Law (e.g. universal crimes)

H. Business Corporations, Foreign Investments and Multinational Enterprises

Nationality1. place of incorporation2. stockholders3. principal place of business

RP Law:GR: Adheres to place of incorporation rule Exceptions: Constitutional provisions imposing nationality requirementsArticle XII, 1987 Constitution:SECTION 11. No franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines at least sixty per centum of whose capital is owned by such citizens, nor shall such franchise, certificate, or authorization be exclusive in character or for a longer period than fifty years. Neither shall any such franchise or right be granted except under the condition that it shall be subject to amendment, alteration, or repeal by the Congress when the common good so requires. The State shall encourage equity participation in public utilities by the general public. The participation of foreign investors in the governing body of any public utility enterprise shall be limited to their proportionate share in its capital, and all the executive and managing officers of such corporation or association must be citizens of the Philippines.

Jurisdiction over corporationsSec. 12, Rule 14, ROC:Service upon foreign private juridical entityWhen the defendant is a foreign private juridical entity which has transacted business in the Philippines, service may be made on its resident agent designated in accordance with law for that purpose, or if there be no such agent, on the government official designated by law to that effect, or on any of its officers or agents within the Philippines.

I. Property Immovables GR: Lex situs rule Exceptions:1. 2nd par. A16, CC: However, intestate and

testamentary successions both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found.

2. Where the question at issue is not the effect of the transaction upon the title to the land, but the rights and liabilities of the parties between themselves (inter se) as a matter of contractual obligation, though the subject matter is land, the governing law is the law that regulates the contract as a whole.

3. While as a rule, the lex rei sitae determines the validity and effect of a mortgage or lien on the land, the validity and effect of the obligation which the encumbrances secure are determined by principles applicable to contracts generally.

4. While the validity of the transfer of land must, as a rule, be determined by the lex rei sitae, the validity of the contract to transfer is determined by the proper law of the contract.

MovablesMobilia personam sequuntur- follows the owner

BUT in RP: A16, CC: real property as well as personal property is subject to the law of the country where it is situated.(Except: NIRC: shares of stocks follows the nationality of the owner)

J. Succession

Unitary system v. Split or scission systemUnitary- universal successionSplit- makes a distinction between

immovables and chattels

RP: Unitary system2nd par. A16, CC: However, intestate and

testamentary successions both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found.

Thus, national law of decedent determines:

1. the order of succession2. the amount of successional rights and 3. the intrinsic validity of testamentary

provisions,4. A1039, Capacity to succeed is

determined by the national law of the decedent.