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CONFLICT OF LAWS COL relating to
INTRODUCTION
A subject that has been defined as part of the municipal law.
TN: It is an erroneous notion that COL (otherwise known as Private
International Law) is International Law in nature or International in
character. Although we have Public International Law, COL is not a
counterpart. PIL is international in character. It deals with the laws that
govern the relationship between states or international organizations or
entities.
Private International Law is domestic in nature, which means that it s a
law enacted by the state. It does not refer to the laws in relation to other
entities or states. It is part of the internal law.
The concept of COL arose from the principle of sovereignty, every state
is a sovereign in itself. Every sovereign has two general classifications of
laws.
Two General Classfications of Laws
1) Purely Domestic/Internal Laws- applies when purely
domestic matter.
2) Conflict of Law/ Private International Law- applies when
there is a foreign element involved.
Common Conflict of Law in the Philippines
(1) Article 15- NATIONALITY THEORY
ARTICLE 15. Laws relating to family rights and duties, or to the
status, condition and legal capacity of persons are binding upon
citizens of the Philippines, even though living abroad.
- if the dispute involves questions relating to the
 Family Rights And Duties
 Status
 Condition
 Legal Capacity of an individual, these should be
resolved by applying the COL relating to personal
law.
(2) Article 16- LEX REI SITAE/ LEX SITUS
ARTICLE 16. Real property as well as personal property is subject
to the law of the country where it is situated.
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.
 Par 1- Property
 Par 2- Wills and Succession (Intrinsic validity of a
will
(3) Article 17- LEX LOCI CELEBRATIONIS
ARTICLE 17. 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.
When the acts referred to are executed before the diplomatic or
consular officials of the Republic of the Philippines in a foreign
country, the solemnities established by Philippine laws shall be
observed in their execution.
Prohibitive laws concerning persons, their acts or property, and
those which have for their object public order, public policy and
good customs shall not be rendered ineffective by laws or
judgments promulgated, or by determinations or conventions
agreed upon in a foreign country.
- Governs the forms and solemnities (extrinsic validity) of
contracts and will or other public instruments.
(4) Article 26 of the Family Code – LEX LOCI CELEBRATIONIS
ARTICLE 26. All marriages solemnized outside the Philippines, in
accordance with the laws in force in the country where they were
solemnized, and valid there as such, shall also be valid in this
country, except those prohibited under Articles 35 (1), (4), (5) and
(6), 3637 and 38. (17a)
Where a marriage between a Filipino citizen and a foreigner is
validly celebrated and a divorce is thereafter validly obtained
abroad by the alien spouse capacitating him or her to remarry,
the Filipino spouse shall have capacity to remarry under
Philippine law.
- Governs the validity of marriages solemnized abroad whether
involving Filipinos or foreigns or mixed marriage.
TN: If the dispute does not involve foreign element, forget about these
provisions, they find no application.
Example:
A contract between two Filipinos, to be performed in the Philippines,
celebrated in the Philippines. There is dispute arising from the contract
because one of the parties is below 15. There is an issue as to the validity
of the contract considering that one of the parties is below 18. How is
this dispute resolved?
This can be resolved by applying our internal law on legal capacity. You
do not have to apply Art 15 because this does not involve a foreign
element.
However, when the party under 15 is a German citizen, this now changes
the complexion of the dispute because it now involves a foreign
element, the citizen of one of the parties. Now, the COL provision, Art
15 is now applicable. His legal capacity to enter into contracts is not
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governed by the Philippine Law but by German Law because that is his
National Law.
What is the issue?
Legal capacity
What is the conflict of laws governing legal capacity?
Article 15, the nationality theory
Article 15, Civil Code
“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.”
Example:
Accordingly, since the party is a German national below 18, then
his legal capacity to enter into contract is to be governed by the
German law. So that if under the German law, 15 years old is their
age of majority which will make one legally capacitated to enter
into contracts, then even if the person is 16 yrs old which is
considered as a minor under the Philippine law, the contract
entered into cannot be assailed on the ground of minority.
When is a dispute deemed to be characterized by foreign element?
A dispute is deemed to be characterized by foreign element when it
involves facts, events, transactions or circumstances occurring in two or
more states and the resolution for the dispute requires for the
application of the various laws of the different states involved.
The ultimate issue now is which law should be applied in the resolution
of the dispute.
Example:
If Germany has its own law on legal capacity for example, their legal
capacity is 15 yrs old which is obviously in conflict with the
Philippine law, therefore in this situation a foreign element is
involved, the legal capacity of the German national which is one of
the parties to the contract under consideration.
And the resolution of the issue on whether the German National is
legally capacitated to enter into contract relates to the laws of
Germany because under the Philippine law his legal capacity should
be determined by his own law and not by Philippine law even if the
contract is entered into in the Philippines, applying the Nationality
Theory.
T.N. for the purposes of our subject it should be settled that there is only
one setting involved. When we talk about Conflict of Laws dispute this
presupposes that the dispute is being heard, filed or pending before
the Philippine courts. So this subject will tackle on how Philippine
Courts will deal on the problem.
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THREE STAGE IN THE RESOLUTION OF A COL PROBLEM
How do we deal with the conflict of laws problem?
There are three stages that the Philippine courts should do in dealing
with conflict of laws problem.
1) Determination Of Jurisdiction
2) Choice Of Law
3) Enforcement Of Judgment
(1) DETERMINATION OF JURISDICTION
The authority of the court to act or hear a case presupposes jurisdiction,
the power to hear or determine any dispute.
When a case is filed before Philippine courts involving a foreign element,
because one of the parties to the contract is a foreign national, the
contract was entered into aboard, it involves succession and the
decedent is a foreigner or the properties subject of the dispute is
situated in a foreign country, these are disputes involving foreign
element, and therefore it is a conflict of laws dispute and the court must
determine jurisdiction.
Which laws determine jurisdiction? Is it the law of the foreign country
or the law of the Philippines?
Since the case is filed before the Philippine court, jurisdiction is to be
determined by the les fori or the law of the forum. As applied to our
subject it should be determined by Philippine laws on jurisdiction.
What is our law on jurisdiction?
BP 129 or Judiciary Reorganization Act of 1980 - this law is the basic
source of jurisdiction of the Philippine courts other than the Supreme
Court.
Judiciary Reorganization of 1948 and other pertinent amendatory
laws:
Atty. T: Other than jurisdiction over the subject matter, we also apply
our internal laws on jurisdiction over the person of the parties involved
(Review Civil Procedure on Jurisdiction over the subject matter and
person, according to Atty). Like if it is purely an action of collection of
sums of money, you determine the amount. We have jurisdictional
amount for the RTC and MTC. If it is an action incapable of pecuniary
estimation, it falls under the jurisdiction of the RTC. If it involves real
property, the assessed value is relevant for purposes of jurisdiction.
(Caveat: This was not discussed extensively by Atty. T, but we included
for reference)
R.A. 7691 which amended B.P. 129 and expanded the jurisdiction
of the lower courts. Some amendments are:
a) When the action is purely monetary, the jurisdictional limit of
MTCs is P400,000. If it exceeds such amount, the jurisdiction is
with RTC;
b) When the action is one that involves title to or possession over
real property, if the assessed value is P20,000, jurisdiction is
with MTC;
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c) If incapable of pecuniary estimation such as specific
performance or injunction, jurisdiction is lodged with RTC.
How is the jurisdiction over the person supposed to be determined?
This can be done by applying our internal laws on acquiring jurisdiction
over the person of the parties involved.
What is the source?
It is primarily the Rules of Court. (Review specific rules on acquisition of
jurisdiction over the person of the parties).
If the party involved is the initiating party or the plaintiff, then the
complainant petitioner’s jurisdiction is acquired by the filing of the
initiatory pleading. In so far as the defending party is concerned, it is
acquired by voluntary appearance on the part of the defending party or
by service of summons.
There are various rules on the service of summons depending on the
nature of the action and the location of the defendant party concerned.
(Review action in personam, action in rem, action quasi-in-rem).
(Caveat: This was not discussed extensively by Atty. T, but we included
for reference)
If it is an action in personam: (From Tanya Notes)
(1) Personal Service
(2) Substituted Service
Rule 14 of the RoC:
Section 6. Service in person on defendant. — Whenever
practicable, the summons shall be served by handling a copy
thereof to the defendant in person, or, if he refuses to receive
and sign for it, by tendering it to him. (Personal Service)
Section 7. Substituted service. — If, for justifiable causes, the
defendant cannot be served within a reasonable time as
provided in the preceding section, service may be effected
a) By leaving copies of the summons at the defendant's
residence with some person of suitable age and
discretion then residing therein, or
b) By leaving the copies at defendant's office or regular
place of business with some competent person in
charge thereof. (Substituted Service)
When service by publication authorized: (From Tanya Notes)
1) Actions in rem
2) Quasi in Rem
3) Action involving the personal status of plaintiff (Sec. 15, Rule
14 of RoC)
Rule 14 of RoC:
Section 15. Extraterritorial service. — When the defendant does not
reside and is not found in the Philippines, and the action affects the
personal status of the plaintiff or relates to, or the subject of which is,
property within the Philippines, in which the defendant has or claims
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a lien or interest, actual or contingent, or in which the relief
demanded consists, wholly or in part, in excluding the defendant from
any interest therein, or the property of the defendant has been
attached within the Philippines, service may, by leave of court, be
effected out of the Philippines by personal service as under section 6;
or by publication in a newspaper of general circulation in
such places and for such time as the court may order, in
which case a copy of the summons and order of the court shall be sent
by registered mail to the last known address of the defendant, or in
any other manner the court may deem sufficient. Any order granting
such leave shall specify a reasonable time, which shall not be less than
sixty (60) days after notice, within which the defendant must answer.
Atty. T: In this case, the Supreme Court made a definitive ruling that in
action in personam as distinguished from action in rem, the only way by
which jurisdiction over the person of the defending party is by
PERSONAL SERVICE WITHIN THE TERRITORY OF THE PHILIPPINES.
ASIAVEST LTD. vs ANTONIO HERRAS
FACTS:
This was an action filed in Hong Kong, in which at that time Herrras was sued
there for the collection of sum amount. However, at the time summons was
served, Herras was already in the Philippines. He could not be served summons
in Hong Kong. The case proceeded there and the Court in Hong Kong caused the
service of summons on Herras in the Philippines. So when judgment was obtained
preferably by the plaintiff before the Hong Kong Court and the decision cannot
be enforced in Hong Kong, the plaintiff sought enforcement of the judgment in
the Philippines where Herras was eventually found. So an action of enforcement
of a foreign judgment was initiated in the Philippines. Herras resisted the
enforcement of the same on the ground that the Hong Kong judgment is void for
lack of jurisdiction over his person. He further argued that based on Hong Kong
laws on summons, the service of summons on him was improper. And therefore,
the decision rendered by the Hong Kong Court without jurisdiction of his person
is void.
While Herras failed to prove the Hong Kong law on the matter, the Court in the
Philippines where the action for enforcement of the foreign judgment was
lodged, applying another principle of Conflict of Laws which is Principle of
Processual Presumption, applied our own rule on service of summons in so far as
action in personam is concerned like the case filed against Herras in Hong Kong
Court.
Atty T: Relevant for purposes of conflict of laws rule on jurisdiction. - It
was in this case that the Supreme Court said that the service of
summons applying our own law pursuant to the processual presumption
principle is void. Because the summons was served outside of the
territory of Hong Kong where the case was filed. The Supreme Court,
enunciated the principle that for in action in personam, an action which
is directed against a specific defendant on the basis of his personal
liability, the only way by which jurisdiction over the defending party is
by personal service and this is done within the territory of the country
where the court seeks. So if the case is filed before our own court and
the defendant is outside of the country, and the action is in personam,
even if that summons issued by our court is served abroad pursuant to
the Herras decision, that service of summons cannot be valid because it
can only be valid when served in the territory of the Philippines.
What is the court supposed to do after applying our own laws or rules
on jurisdiction, whether subject matter or persons, finally, it
eventually determines that it has no jurisdiction over the place or over
the person of the parties?
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RULE 1. Our court has no choice but to dismiss the case because it
cannot determine the case over which it has no jurisdiction.
RULE 2. In situations where the court in the Philippines determines
that it has jurisdiction to try and hear the case, what is the court
supposed to do now when it has jurisdiction in the first place?
There are two possible things that our court can do or may do:
(1) It may determine that even if it has jurisdiction, it may not be the
convenient forum.
Atty T: The convenience of the forum is relevant because the
dispute involves foreign elements and the significant factors of the
disputes may relate to facts, events, or transactions that are not
accessible and available in the Philippines and therefore filing of
the suit before our courts may not be a convenient remedy.
So the principle of forum non conveniens becomes relevant in so
far as this second step is concerned.
Even if the court determines that it has jurisdiction, it may still
refuse to proceed with the case on the ground that it is not a
convenient forum.
The principle of forum non conveniens is relevant even if the court
has jurisdiction. The application of this principle does not hinge on
the absence of presence of jurisdiction.
It is applicable even if it has jurisdiction or even in cases where it
has jurisdiction but it is not a convenient forum because of a
number of factors - common factors that justify or warrant the
application of forum non conveniens is when the remedies, when
the evidence and the parties that may be needed or documents or
evidence that may be needed in the prosecution of the case are
found abroad.
If the court determines that it is not convenient forum, because
the parties or the evidence are not readily available in the
Philippines, it may justify dismissal of the action on the ground of
forum non conveniens.
(2) When the court determines that the Philippine court is not in the
position to come up with the intelligible decision or finding as to
the applicable law and the relevant facts of the case, this may also
justify the court in invoking forum non conveniens and
accordingly dismiss the action.
(3) The court in the Philippines may determine that even if it can
render decision on the dispute, the decision may not be
effectively enforced by the court because the court has no
resources to execute or enforce a judgment.
Atty T: This is commonly possible in instances where the
defending party is not based in the Philippines and the defending
party has no properties in the Philippines.
So the plaintiff may obtain favorable judgment within the
Philippines against the defendant but the judgment may not be
effectively enforced because of the lack or absence of the
properties or resources of the defendant who is adjudged liable by
our own court.
The court may dismiss the case on the ground of forum non
conveniens.
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Principle of FORUM NON CONVENIENS
What are the requisites that justify the court in proceeding with the
case involving foreign element?
(1) If the court is the convenient forum for the parties involved,
taking into consideration the particulars of the case, the court
may proceed with the case. Otherwise, it can dismiss it under
forum non conveniens.
(2) If the court is satisfied that it is in the position to determine
the applicable laws and to make relevant finding of facts, it
may proceed with the case. Otherwise, it may dismiss it on the
ground of forum non conveniens.
(3) If the court determines it has sufficient or it is in the position
to effectively enforce a judgment, it may proceed with the
case involving foreign element, otherwise dismiss it on the
ground of forum non conveniens.
Atty T: So in most cases assigned, these are the 3 requisites that the
court will have to determine (their absence or presence) if it should
dismiss the case on the ground of forum non conveniens or proceed
with the trial on the merits.
MANILA HOTEL vs. NLRC
FACTS:
This involves a suit filed by a Filipino working in Oman who resigned from his work
because he was employed by a hotel in Beijing, China. Because of the political
turmoil in China (Tiananmen Square Massacre), this poor OFW was terminated
due to financial reverses brought about this political reverses.
He returned to the Philippines and filed a suit for illegal dismissal and payment
for various labor benefits.
The defending parties there involving the agency and the employers based
abroad moved for the dismissal of the action precisely on the ground of forum
non conveniens.
RULING:
SC sustained them because the SC found that:
1) Philippine court is not the convenient forum given that the defending
parties are all based in China and not in the Philippines. All the significant
components of the contract took place abroad (the negotiation, the
perfection, the consummation etc.) The witnesses are all based abroad so
the SC said that Philippine court is not a convenient forum to resolve the
issue.
2) The SC also has determined that it is not in the position to determine
intelligently the applicable laws and relevant facts of the case because the
contract was executed abroad and the cause for the termination which
allegedly violated the contract of employment took place abroad referring
to the political crisis in China which was made the basis for the
retrenchment of the defendant party.
So the SC said:
 First, it is not in the position to determine the applicable laws applying
the principle of lex loci celebraciones, the contract having been
executed abroad
 Second, it is not in the position to make the appropriate finding of
facts because the factual basis for the determination took place
abroad.
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 Third, fact considered by the SC is the court in the Philippines is not in
the position to effectively implement whatever judgment it may arrive
at in relation to the dispute primarily because the defendants are all
based abroad and the defendants have no properties located in the
Philippines. So even if the Philippine complainant prevails in the suit
and the Philippines awards him the monetary claims he sought for in
the dispute, the court in the Philippines may not effectively enforce
the judgment.
So this case illustrates the principle that for purposes of applying the
doctrine of forum non conveniens, the court will have to determine
these 3 requisites as discussed in this case. Take note of that!
As I’ve said, if the court determines that it has jurisdiction over the
person and over the subject matter of the case, it may still dismiss the
case on the ground of forum non conveniens. On the other hand, it may
proceed if it finds that these 3 requisites are present.
One important thing about Forum Non Conveniens:
FNC, while it can be a ground for the dismissal of a complaint or an
action even if the court has jurisdiction, the appropriate remedy to get
the dismissal of the action, if you are the party moving for the dismissal,
is to file an answer and incorporate the defense of FNC.
Then, proceed to trial. In the course of the trial, establish the factual
bases for the justification of FNC.
The SC has been consistent in the rulings that FNC cannot be a ground
for a motion to dismiss because of 2 justifications advanced:
1) FNC is not one of the grounds enumerated under R16 Motion
to Dismiss.
- In effect, the SC is saying that the grounds enumerated in
R16 are exclusive for a motion to dismiss.
2) Dismissal of an action based on FNC requires determination
of the factual bases for the FNC.
- This can be properly done only during the trial.
- If you are the defending party, and you believe that the
Philippine court is not the convenient forum, you must
file an answer and incorporate it as a defense, then
proceed with the trial.
In the course of the trial, establish by evidence the factual
bases for saying the PH court is not the convenient
forum.
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Hearing on your of your affirmative defense of FNC.
Under the rules, the defending party has two options if there is a basis
for the dismissal of the action.
1) File a Motion to Dismiss, or
2) File an Answer, incorporate ground as one of your
defenses, either affirmative or special defense. To
shorten the proceedings, you can move for a preliminary
hearing on your affirmative defenses based on the
ground.
Take Note: If the ground for dismissal is grounded on FNC, two remedies
above are not available. You cannot file a motion to dismiss, neither ask
for a preliminary hearing on affirmative defense based on FNC.
[Atty T: Personally, I have problems with this ruling.
1) It is not accurate to say that a motion to dismiss can only be based
on grounds mention of R16.
Examples:
a) Failure to comply with the certification of non forum
shopping.
b) Failure to prosecute
It is incumbent upon plaintiff to move that the case be
set for pretrial. Jurisprudence has set the threshold to 6
mos, after that, the defending party may ask for the
dismissal of the complaint on the ground of failure to
prosecute
2) If the problem posed by the SC in allowing MTD in grounded on
FNC is the requirement on the need for factual determination, this
can be addressed without having the parties burdened with the
rigors of the trial.
 The factual bases for FNC can be determined during the
hearing on the MTD in accordance with rule on Evidence on
Motion.
However, for purposes of our exam and the bar, follow the SC.]
ILLUSTRATIVE CASES:
RAYTHEON INTERNATIONAL v. ROUZIE
The defendant filed an answer and incorporated the defense of FNC and asked
for preliminary hearing on the affirmative defense of lack of cause of action and
FNC.
The SC said that a party invoking forum non conveniens cannot get a dismissal of
the case by filing a motion to dismiss. This ruling is premised on two justifications:
1) It is not one of the grounds under Rule 16 – and the court said that
the said grounds are exclusive, and therefore FNC is not an
appropriate ground.
2) The dismissal of the dispute involving a foreign element requires
factual determination of the grounds relied upon.
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HAZEGAWA and NIPPON v. KITAMURA
The defendants here filed a motion to dismiss on the ground of forum non
conveniens. The Supreme court said that it is not a ground for a motion to
dismiss.
PIONEER v. TODARO
The Supreme Court disallowed the filling of a motion to dismiss on the ground of
forum non conveniens.
So these are really settled jurisprudence in support of the ruling that a motion to
dismiss is not a proper remedy for the dismissal of an action based on forum non
conveniens neither is preliminary hearing on the affirmative defense based on
forum non conveniens.
What happens now if the Philippine court decides to proceed? (Because
all the requisites are present)
(2) CHOICE OF LAW
This time the court will now have to do the so-called choice of law. This
is the part of the proceedings where the court in the Philippines where
the case is filed and pending will have to determine or resolve the
dispute by applying the applicable laws.
The applicable laws could be the applicable foreign law or depending on
the conflict of laws rule involved, applying domestic or our own internal
law.
In the end, a conflict of laws rule contemplates of a situation where a
case is filed before our own courts involving foreign element and the
Philippine court where the case is filed and pending applies either the
appropriate foreign law or the appropriate internal law.
How is this to be determined? (Whether to apply foreign or internal
law)
This is to be determined by applying our own COL rule because our COL
rule precisely direct our courts in the resolution of the dispute whether
or not to apply a foreign law or our own domestic law.
Third step after determining the proper choice of law, the court will have
to render its decision. The third step is now to implement the judgment.
So there three stages where our courts in the Philippines will have to go
through in cases of COL disputes:
1) Determine Jurisdiction
2) Apply the Appropriate Choice of Law
3) Enforcement of the Judgment
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Take note: Jurisdiction as you can see is a stage that occurs prior to the
choice of law set for the stage. Jurisdiction then second is choice of law.
Jurisdiction and choice of law should not be confused with each other.
Matters concerning jurisdiction are only those jurisdiction over the
subject matter or jurisdiction over the person.
These are the only issues that the court should determine in so far as
the first stage is concerned. Choice of law is another stage after
jurisdiction is determined.
Choice of Law is the second stage after jurisdiction is determined.
What are the issues that are normally involved in so far as the 2nd stage
is concerned?
The application of the proper law applicable – the choice of law. What
law is applicable for purposes of resolving the dispute.
If one of the parties alleges that the proper law is this and that. It is not
correct to file a motion to dismiss on the ground of jurisdiction just
because the applicable law, as the party alleges, is a foreign law.
The common mistake is to equate jurisdiction with foreign law
applicable.
It is possible that our courts have jurisdiction to resolve a dispute but in
the resolution of the dispute our courts have to apply a foreign law.
This is precisely the province of our conflict of laws rule, our laws or rule
that directs our courts whether or not to apply a foreign law in a given
dispute. This is the principle clearly demonstrated in the case of
HAZEGAWA vs KITAMURA.
HAZEGAWA vs KITAMURA
FACTS:
This is about a contract of agency which involves a contract between Japanese
nationals. The contract was executed in Japan and in Japanese language.
When the contract was pre-terminated, the Japanese agent sued alleging breach
of contract and other monetary claims.
The Defending parties, Kitamura and NIPPON, argued, among other things, that
the court in the Philippines, where the action was filed, has no jurisdiction
because the law applicable necessary for the dispute is Japanese law. In effect,
the defendants here argued that since the applicable law is Japanese law, then
our courts have no business hearing the case.
RULING:
The Supreme Court said that this is an erroneous, mistaken appreciation of the
mechanics of the Conflict of Law dispute.
Jurisdiction, as I said, is to be determined by our rules on Jurisdiction. The
application of the appropriate law is the province of the Choice of Law which is
the second stage in the entire ladder of the resolution of dealing with a conflict
of law dispute.
In short, the Supreme Court said that Jurisdiction should not be confused the
choice of law. Because it is always possible that our courts have jurisdiction, yet
in the resolution of the dispute it may apply a foreign law.
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The court is guided by some established principles that would make the
function of the courts easier
What are these established guidelines?
There are instances when the court where the case is filed or pending
has no other choice but to apply local law, or in our setting the Philippine
law.
So even if the dispute involves foreign element, there are certain
instances when the court has no other choice but to apply Philippine law
in the resolution of the dispute involving foreign element.
What are these instances?
(1) When our own conflict of laws rule provides that it should be
Philippine law that should apply. The court has no other choice
but to apply Philippine law.
(2) If the Philippine court determines that the applicable law is
foreign law.
(3) When the applicable foreign law is contrary to the established
policy of the forum referring to Philippine public policy.
FIRST INSTANCE
(1) When our own conflict of laws rule provides that it should be
Philippine law that should apply. The court has no other choice
but to apply Philippine law.
What are these common conflict of laws rule in the Philippines
which support this instance?
(a) Article 80 of the Family Code – the law that governs property
relations between spouses. The property relation that governs
between a foreigner or even mixed marriage between a
foreigner and a Filipino and with more reason if both are
Filipinos, generally is Philippine law regardless of the place of
the celebration of marriage and the location of the properties
except for certain limited instances.
Art. 80. In the absence of a contrary stipulation in a marriage
settlement, the property relations of the spouses shall be
governed by Philippine laws, regardless of the place of the
celebration of the marriage and their residence.
This rule shall not apply:
1) Where both spouses are aliens;
2) With respect to the extrinsic validity of contracts
affecting property not situated in the Philippines and
executed in the country where the property is located;
and
3) With respect to the extrinsic validity of contracts
entered into in the Philippines but affecting property
situated in a foreign country whose laws require
different formalities for its extrinsic validity.
This means to say that if the issue is all about property
relations between spouses and the dispute does not fall under
any of the exceptions, the issue on property relations shall be
resolved by the forum meaning the Philippine court by
applying the provisions of the Family Code because our own
conflict of laws on the matter say so.
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(b) Article 15 – another conflict of laws in the Philippines which
directs the Philippine court to apply Philippine law on the
matter of status, family right and duties, condition and legal
capacity insofar as Filipinos are concern.
Article 15, Civil Code
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.
SECOND INSTANCE
(2) If the Philippine court determines that the applicable law is
foreign law.
Example:
If the Philippine court determines under the circumstances and
evidence adduced by the parties that the applicable law is Japanese
law. The issue is all about legal capacity of the contracting parties
in an ordinary contract of service.
One of the parties is a Japanese national who is 16 years old. The
issue is about the validity of the contract considering that one of
the parties is under the age 18.
The court now will determine that this is an issue about legal
capacity, so apply our own conflict of law rule which is Article 15,
nationality theory. And since the 16 years old is Japanese his legal
capacity should be determined by applying Japanese law.
So the applicable law insofar as the issue on legal capacity of
Japanese national is determined to be Japanese law.
But if the Japanese law is not sufficiently established and Philippine
courts does not take judicial notice of foreign laws.
What happens when that Japanese law is not sufficiently
established by the rules prescribed for the purpose?
There is principle we call PROCESSUAL PRESUMPTION under which
the court will have to presume that the unproven Japanese law is
the same as the Philippine law.
In that sense the Philippine court will have to apply Philippine law.
THIRD INSTANCE
(3) When the applicable foreign law is contrary to the established
policy of the forum referring to Philippine public policy.
This is another instance where the Court has no choice but to apply
the Philippine law and used as a guideline on determining the
choice of law.
7

ILLUSTRATIVE CASES:
CADALIN vs POEA
FACTS:
This involves a case filed by Filipino Overseas Workers who were working in
Bahrain.
They filed an action before our Labor Courts for payment of certain benefits. And
because the contracts were entered into in Bahrain, the contracts were supposed
to be governed by the laws of Bahrain.
Under the applicable laws in Bahrain, action for payment of benefits like the one
filed by these Filipino Overseas Workers prescribes in a year.
ISSUE:
WON the Bahrain law on prescriptive period of claims for employment benefits
applies.
RULING:
The SC said that the law of Bahrain that claiming of employment benefits shall
prescribe in a year is against public policy of the forum, referring to the
constitutional protection to labor.
SC further said that instead of one-year prescriptive period according to Bahrain
law, what should apply in answering the issue of prescription is Philippines law
which provides for three-year prescriptive period.
LWN VS DUPO
FACTS:
This was an action filed for the recovery of long service benefits which are
awarded to employees in recognition of their loyalty and length of service to the
company pursuant to the laws of Saudi.
The employee returned to the Philippines and filed this action. The Court in the
Philippines has determined that the applicable law on the matter since this is a
contract is the law of Saudi Arabia. Under this law, this kind of action prescribes
in one year.
ISSUE:
WON the Saudi Arabia law on prescriptive period of recovery of the long service
benefits applies.
RULING:
SC said that this is contrary to the public policy of the forum, the Philippines.
This is the policy that protects labor and like Cadalin Case, the issue on
prescription period shall be resolved by applying the Philippines law which
provides for a three-year prescriptive period.
EH404 | 2017-2018
AMERICAN BANK VS AMERICAN REALTY CORPORATION
FACTS:
This involves a transaction between a bank and three bank borrowers. There are
three corporations, all based abroad, which obtained loan from Bank of America.
When the three borrower-corporations failed to pay the loan, they entered into
a restructuring agreement.
The condition imposed by the pursuant to the restructuring agreement, is for the
three borrowers to put up a certain security in the form of a guarantor.
This is where a Philippine corporation came into the picture serving as the
guarantor, by executing a real estate mortgage on the properties located in the
Philippines.
When the foreign corporations again failed to pay and fulfill their obligations
under the Restructuring Agreement, the bank proceeded to collect.
For this purpose, the bank instituted civil actions abroad, specifically England and
Hong Kong, for the collection of the loan. During the pendency of these actions,
the bank also foreclosed the mortgages involving the properties in the Philippines
of the domestic corporation (guarantor).
So the domestic corporation filed an action for damages contending that the
foreclosure was illegal because it violates the prohibition on splitting the cause
of action.
It was argued by the bank that the dispute arose from the contract of loan
pertaining to the Restructuring Agreement mainly and other derivative contracts.
The contracts between the parties stipulate the so called “Choice of Law”, to the
effect that any dispute that may arise between the parties in connection with
contracts, should be resolved by applying the laws of England.
Lex Contractus was applied. It is argued that the England laws shall apply which
provides that one has the option to proceed and collect the obligation (collection
suit) and at the same time, foreclose a mortgage.
In other words, collection suit and foreclosure are cumulative remedies according
to England law. However, this happens to be disallowed in the Philippines
because our policy is prohibiting splitting of cause of action.
This means that in our jurisdiction, a creditor is only allowed to avail of collection
suit or foreclosure as alternative remedies, not both nor at the same time.
ISSUE:
WON the England law on cumulative remedies of collection suit and foreclosure
of mortgage applies.
RULING:
SC said that foreign English law is contrary to the well-established public policy of
the Philippines on the proscription against splitting a single cause of action.
In effect, SC said that it was not proper for the bank to foreclose on the mortgage
given that it already availed of the remedy of collection.
Atty. T: These cases illustrate that the appropriate law applicable is a
foreign law however, if it runs counter to the established public policy
of the forum then that foreign law cannot be recognized. In effect, we
apply our own law.
In performing the function of choosing the right, correct and applicable
law, our courts are guided by some recognized principles.
8
 EH404 | 2017-2018

Other principles which may help the court in discharging its burden of ILLUSTRATIVE CASES:
making the proper choice of law:
GIBBS V. GOVERNMENT OF PHILIPPINE ISLANDS
1) Characterization
FACTS:
2) Renvoi This involves an American who happens to have several properties in the
3) Processual Presumption Philippines. When the wife died, he went to the office of the Registry of Deeds in
the place where the properties were located and asked that the titles of the
properties be transferred solely in his name brought about by the death of his
American wife.
(1) CHARACTERIZATION
The registrar of deeds agreed to act favourably on the request, but he imposed a
What is CHARACTERIZATION? condition that he should first pay the corresponding estate tax because under the
tax laws in the Philippines, when someone dies leaving certain properties, estate
From the term CHARACTERIZE. Every conflict of law problem has 2 tax should be paid.
Components:
Mr. Gibbs refused, contending that his request for the transfer of titles of
1) Factual Problem properties solely in his name is not based on succession but based on the laws in
the US governing accretion, a principle relating to property.
2) Legal Solution
Thus, there is no basis for the register of deeds claim for payment of estate tax
because the transfer of the title sought for is not based on succession and there
was no transmission of rights.
Factual Problem – The problem presented by the parties which calls for
the application of the legal solution, otherwise referred to as the Under US laws, the interest of a wife in the property acquired during the marriage
connecting factor. For purposes of Conflict of Laws, every dispute, every is only inchoate, it is not an existing right of ownership.
factual problem has its corresponding legal solution. When the wife dies ahead of the husband, the property by law is deemed to be
owned solely by the husband.
So that when the wife dies, nothing is transferred to the husband because the
What are these possible characterizations? wife did not have an existing right, only inchoate.
Personal Law – issues about their Status Legal Condition, or Capacity.

The process of assigning a factual problem to its proper category so that
in the resolution of the issue, the court of the administrative bodies or
tribunal will have to apply the correct legal solution.
Take note that every conflict of law problem has two components - the
factual components and the legal components.
The factual component is the problem and the legal component is the
legal solution or the connecting factor.
ISSUE:
WON Gibbs is liable to pay the estate tax.
RULING:
FIRST ASPECT: The Factual Problem
The SC first determined that this is a conflict of laws problem involving property,
and not succession. Applying the Philippine conflict of laws rule on property,
Article 16, which is lex rei sitae or lex situs (the law of the place where the
property is situated), the problem should be resolved by applying Philippine law.

So every conflict of law problem has its own corresponding conflict of

law solution depending on the categorization of the factual problem.
So it is necessary to first categorize the factual problem so that the court
will determine the appropriate corresponding legal solution.
What are these various categories for purposes of conflict of law rules?
SECOND ASPECT: The Legal Solution
What is the Philippine Internal Law that governs ownership by the spouses over
properties acquired during the marriage?
Under the laws then existing at the time or before the Family Code was passed,
the Philippines adopted the property regime of conjugal partnership where the
husband and the wife essentially owned the properties.

Categories Legal solution/connecting Both of them have existing interest over the properties belonging to the conjugal
factor partnership.
Unlike the laws in the US where the wife’s interest over the property is only
PERSONAL LAW - issues Art. 15, NCC
inchoate, ours in the Philippines, it’s really an existing right.
concerning the family rights and
duties of an individual, their legal When the wife dies, following that principle, his or her interest over the property,
capacity, their status and their which was then existing at the time when she was still alive, will be transmitted
conditions. to the husband pursuant to the laws on succession.

SUCCESSION Extrinsic validity - Art. 17,

815, 816 and 817, NCC
Intrinsic validity - Art. 16,
par. 2

9

SAUDI ARABIA AIRLINES v. CA
FACTS:
An action for tort where a Filipina was illegally dismissed by her employer, Saudi
Arabia Airlines, arising from the incident where she almost got raped. She went
to the Philippines and filed a civil action for damages.
The defendants were based in Saudi Arabia so there is foreign element involved.
Especially so that some acts which were parts of the complaint also took place in
Saudi Arabia. This is thus a Conflict of Laws problem.
ISSUE:
How does the principle of characterization become relevant in this case?
RULING:
FIRST ASPECT: The Factual Problem
The principle of characterization serves its purpose in the case because there was
a problem as to which applicable law is proper.
The Supreme Court has to categorize the factual problem. It started with
categorizing the problem as something related to tort. It’s a tort case and in a tort
action for damages, our courts have jurisdiction.
SECOND ASPECT: The Connecting Factor/Point of Contact/Legal Solution
The SC correspondingly applied the connecting factor which refers to the conflict
of laws rules in the Philippines on tort.
The COL rules in the Philippines that governs torts is the principle of lex loci
delicticommissi (the law of the country where the tortious act is committed).
The problem is there were so many tortuous acts involved, some committed in
SA and some committed in the Philippines so the court had to grapple with the
issue, where is the lex loci delicticommissi?
In the COL rule, we have this principle “Most Significant Relationship”.
In a situation where there are numerous tortious acts involved committed in two
or more states, for purposes of determining the lex loci delicticommissi, the court
will have to apply this principle. The court will determine which of these
countries, as the most significant connection to the tortious acts involved.
In arriving at the conclusion that Philippines is the lex loci delicticommissi, the SC
said the most significant relationship relates to the Philippines.
Why? The complainant is a Filipina. The fraud, consisting in misleading the Filipina
to go back to SA in the guise of helping SA authorities to investigate the crime,
was committed in the Philippines.
It was also established that SA airlines was also conducting business in the
Philippines since it sold airline tickets here. Taking into account these relevant
factors, the SC said the significant relationship relates to the Philippines so
Philippine laws apply.
ART 15 AND ITS EFFECT TO FOREIGNERS
TN: Although Art 15 literally mentions only Filipino citizens, the
application of the Nationality Theory has been expanded to include
foreigners as well.
You cannot find any provisions in our laws which provides for Nationality
Theory in so far as foreigners are concerned. However, jurisprudence
has provided for the rule.
EH404 | 2017-2018
RECTO v HARDEN
The SC made a definitive ruling that Art 15 which espouses Nationality Theory,
equally applies to foreigners.
FACTS:
A laywer filed a suit to collect his attorneys fees against his client based on the
contract the lawyer had with the client. The client, in resisting the complaint,
argued that the contract cannot be enforced because it is against public policy. It
is void. It was against public policy because the contract in connection to a
divorce, arguing that divorce is against public policy.
RULING:
The SC said:
The contract was not actually in relation to divorce. it was only a contract
whereby the services of the lawyer were engaged by the client in order to protect
her interest in connection to a divorce case to be filed abroad. It was not directly
relating to the divorce proceedings abroad. Even if it be conceded that the
services of Atty Recto (lawyer) were engaged for purposes of divorce, the
contract is still valid and enforceable against the client because the latter is an
American citizen. Being an American citizen, she is governed by her personal law,
applying Art 15. Under US Laws, divorce is recognized and valid, therefore,
divorce is not against public policy notwithstanding the fact that it is against
public policy in the Philippines.
Atty T: The importance of this ruling is that the SC categorically ruled
that Art 15, which espouses Nationality Theory, equally applies to
foreigners. That is precisely why in the Family Code, when a foreigner
applies for a marriage license in the Philippines, instead of requiring
then to present a birth certificate, they are instead required to present
a certificate of legal capacity to be issued by their own government or
consular office.
It is no wonder that a German national, 15 years old, may validly marry
in the Philippines, provided that under his/her own law, at the age of 15,
they have the legal capacity to contract marriage.
SAME SEX MARRIAGE
Marriage could be something related to status.
How are we to consider validity of same sex marriage if valid in the
laws of the countries of the parties concerned?
Supposed they happened to be involved in a litigation in the Philippines.
One of issues decisive of the resolution of the case is their status,
whether or not they are marriage. That would be a problem of our court.
If the court is faithful to Art 15, it is expected to uphold, recognize the
validity of same sex marriage.
SEX REALIGNMENT PROCEDURE
Born as male, underwent sex realignment, now physically endowed with
female attributes, and legally recognized in his country as a female. In
his country, change of gender by sex realignment procedure is
recognized as a valid form of changing one’s gender.
In the court in the Philippines is confronted with the issue of whether
the person is a male or a female, this really is a judicial crisis.
10

If the court is compliant with Art 15, then it would be easy for the court
to say that being foreigners, the issue is a matter of status, apply
Nationality Theory [personal law]. In this respect, the court cannot be
legally wrong.
When our court is confronted with COL problem, our courts are guided
by some established principles.
 There are instances when our courts have not choice but
apply our internal law even if the applicable law is that of a
foreign law.
The court may recognize Art 15.
What happens to the principle that “if a foreign law contravenes the well
established public policy of the forum like, policy on prescription on
Labor claims and splitting single cause of action. In these cases, the SC
was steadfast in upholding policy over foreign law.
Can the court, if confronted with issues on same sex marriage and sex
realignment also see it differently and apply the rule on public policy?
SILVERIO CASE
This issue was raised before when Silverio tried to have his gender changed on a
basis of a sex reassignment surgery.
The SC was empathic holding that as of now, there sis simply no law which allows
change of gender on the basis of sex reassignment.
Although, the court apparently does not close it door on the possibility of a law
recognizing validity of sex realignment procedure as a mode on changing one’s
gender.
Immutability of Gender
The prevailing rule in our jurisdiction is our gender is determined at birth
by physical examination of one’s genitals. Once the gender is
determined at birth, the gender becomes immutable regardless of any
physical or scientific alterations made. Gender is a matter of law. There
is no law that allows any mode of change.
The solution is, legislation.
This is a legal dilemma. Both perspectives can be legally advocated. On
one hand, it is legally correct to say that it should be recognized as valid
based on Art 15.
In many cases, the SC has recognized the validity of divorce in so far as
foreigners are concerned, and so long as valid under their own law,
consistent with Art 15. However, take note that divorce is against our
public policy. (Van Dorm v Romillo, Pilapil v Somera)
It is obvious that jurisprudence, public policy issues were limited only to
Filipinos and not to foreigners.
EH404 | 2017-2018
VAN DORN v ROMILLO
A divorce decree was obtained abroad. After, the husband sued the wife for co-
management of their conjugal business contenting that, as a husband, he is still
entitled to manage their business.
Husband: divorce is not allowed in the Philippines, therefore, they should still be
considered married and the husband entitled the right to co-administration.
RULING:
SC disagreed. The SC said, while it is not recognized in the Philippines and against
public policy, but being a foreigner, he is governed by his own law, his Nationality
Theory.
PILAPIL v SOMERA
A German husband obtained a divorce decree in Germany. After, he realized that
when they were still married, the wife played fire with another man. He learned
of the infidelity of the wife very late and he cannot move on. He filed a criminal
complaint for adultery.
ISSUE:
Whether the husband has the legal personality to institute the action because
under our Rules on CrimPro, in private crimes like adultery, only the offended
husband can initiate it.
RULING:
The husband, having obtained a divorce decree in Germany that dissolved the
marriage, he can hardly be considered as an offended spouse.
Atty T: This case demonstrates the rule that our courts apply Nationality
Theory in so far as foreigners are concerned, to the point that even if it
is against public policy but valid under the laws of the foreigners, our
courts recognizes divorce.
How do we address this problem?
If you are advocate, there is no problem because you can just take a
position, depending on which side you are on.
If you are for the upholding of the validity of same sex marriage, then
invoke Art 15. But if you are for the other side, you do not want same
sex marriage to be recognized, then you invoke public policy principle.
Either way, this has not been settled yet. As of now, there is no actual
case decided by the SC. These are just hypothetical problem but it could
happen.
The problem is when you are the sitting judge. How will you resovle the
issue?
11
 EH404 | 2017-2018

ART 15 v PUBLIC POLICY If it involves a contract and the subject matter is a property. All the
aspects of the contract, legal capacity of parties, extrinsic validity
Both positions are correct legally.
and intrinsic validity, these will all be governed by lex rei sitae

Question: In relation to Article 247 of the Revised Penal Code

General Rule, Nationality Theory and the first exception is a
You are now talking about the application and not a situation where contract involving property.
these facts may come in.
Example:
(2) Capacity to inherit
A Thailander born as a man but underwent sex realignment surgery
Although this is still nationality theory, but the national law here is
so as to be recognized as a woman. Supposed under the laws of
not the national law of the heir. Capacity of an heir to inherit is
Thailand he is already considered as a woman. He travelled to the
governed by the national law of the decedent.
Philippines and he is now a victim of rape. If you are the defense
counsel, how would you defend you client?
(3) Capacity of the testator to make a will is not only governed by
national law but also by domiciliary law, PH law and Lex Loci
Atty. T: You might find the rules on conflict of laws as a defense. You can
Celebracionis.
always argue that the crime of rape cannot be committed because the
victim is not a woman and in rape it presupposes that the victim is a In so far as will making is concerned the legal capacity of the
woman. This is a conflict of law issue because the gender is an element testator to make a will is subsumed under the aspect of extrinsic
of the crime and if that element is not present then there cannot be such validity of will. Therefore, the legal capacity of the testator is not
crime. determined separately from the extrinsic validity of the will.
Example:
This woman was abused by her boyfriend. The woman filed for Extrinsic Validity of the will especially when executed by a
VAWC (violence against women and children). But this crime foreigner abroad is governed by four laws.
presupposes that the victim is a woman or a child. So gender is
1) National Law of the Testator
critical and will require the determination on the issue of whether
2) the Law of the Place where the testator is Domiciled
the victim is a man or woman.
3) the Law of the Country where the testator Executed his
will
4) Philippine Law
Atty. T: For our purposes I will not ask you to act as a judge. I will just
ask you to act as advocates. You will argue either as a defense counsel
or as a prosecutor using these two perspectives, nationality theory and
Even if under the three laws enumerated, the testator is not
public policy.
capacitated to execute a will. For example, he is not capacitated to
execute a will under his national law, domiciliary law or the law of
the place of execution but he is capacitated under Philippine law.
What are the other Exceptions to the Nationality Theory?
(1) When the issue on legal capacity is intertwined with a contract
involving property Is the will valid insofar as to its legal capacity?
Example: Yes, because any of these four laws can be the basis for the validity
of the extrinsic validity if the will.
The contract is deed of sale over a condominium unit. The seller is
15 years old and a Japanese national. The buyer is a Filipino and 20
years old. This is a conflict of law problem because one of the
parties is Japanese, below 18 yrs old. So if Article 15 will be applied,
nationality theory, his legal capacity will be determined by his law.
If Japanese law recognized him to legally enter into contracts then
that contract cannot be challenged on the basis of minority. But
this is an exception because what governs now is not Article 15, so
far as the legal capacity of the seller.
The applicable rule or principle is Lex Rei Sitae, Article 16 1st
paragraph

Article 16, Civil Code

Real property as well as personal property is subject to the law
of the country where it is situated.

12

(2) RENVOI DOCTRINE
Take note of the Renvoi problem. The problem of the renvoi arises when
there is doubt as to whether the reference by our own laws to a foreign
law is a reference to the foreign country’s internal law or a reference to
the foreign country’s entire body of laws including COL.
For emphasis, the study of COL presupposes that there are always two
sets of law in every state; the internal law and the COL.
When our laws in the Philippines particularly, our own COL, make
reference to a foreign law, there is obviously doubt there.
Which law because it doesn’t specify what kind of law in so far as the
general classification are concerned.
Does it refer to the purely internal law of the country or the entire body
of laws including the COL? There is a doubt.
And the application of these laws matter in the resolution of the dispute.
This was the problem that came out in the case of CHRISTENSEN to
demonstrate this principle.
EDWARD CHRISTENSEN v. AZNAR
FACTS:
Edward is an American Citizen domiciled in Phils. During his lifetime, he executed
a will and affects properties located in Phils.
He has 2 daughters: legitimate (American Citizen) and illegitimate (Filipina).
In the will of Edward, the bulk of his estate is left to the legitimate daughter while
a morsel of his estate was left to the Filipina.
Filipina contested the intrinsic validity of the will (amount of successional rights)
and that she is entitled to get more from the estate of her father. She invoked
Phil. Law.
Under the Phil. Law, the illegitimate child is entitled to ½ of what the legitimate
child is entitled to.
Atty. T: The factual problem is the successional right. How much should
the illegitimate daughter get from his American illegitimate father?
How did the court resolve this?
Characterizing the problem as successional rights, the applicable conflict of
laws rules is ART. 16 of the CC – Nationality Theory.
So our own conflict of rules rule (Art. 16, Par 2) expressly makes reference
to a foreign law, the national law of the decedent.
But that reference to a foreign law creates a doubt since it doesn’t specify
which law. Because there are two enerala classification of laws on a State.
Two Classifications under the US law:
1) INTERNAL LAW – do not adopt a system of legitime. Any
person can dispose his estate by will in the manner he or
she deems fit without any limitation imposed by law.
(Contrary to Phil. Law)
2) COL (involving foreign element) – adopts the Domiciliary
Theory – the law of the country where the testator is
domiciled at the time of death.
EH404 | 2017-2018
Since, Edward was domiciled in the Philippines at the time of his death,
applying the COL rule in US, the issue relating to the intrinsic validity of
the will is referred back to Phil. Law.
Atty T: Here lies the confusion since our COL rule does not specify which
classification of law to apply.
There is now a doubt. Should our court apply the Internal Law of the
US or should we apply their Conflict of Laws rule (Domiciliary Theory)?
The Supreme Court said what our courts should do is accept the
referring back of the issue to us and apply our own Internal Law.
Meaning, the national law being referred to in our own conflict of
laws rule, Par. 2 of Art. 16 – When it says “National Law of the
decedent” this actually refers to the Conflict of Laws rule of the
country of the decedent.
So apply the Domiciliary theory which refers the case back in the
Philippine Laws and this time around our court should apply our
own internal law (Illegitimate child is entitled to ½ of what the
legitimate child is entitled to).
There are 4 possible solutions when faced with a problem of Renvoi:
1) Court will accept the renvoi
Important: Based on jurisprudence, this is the only ne adhered
to by our courts as shown in the Christensen Case
2) Court will reject the renvoi
Philippine court will apply the internal law of the foreign
country.
3) Theory of Mutual Disclaimer
This is more or less the same as the first solution. The forum
court should reject any referring back of the issue and apply
the internal law of the forum.
4) Foreign Court Theory
What the court of a foreign country will do if confronted with
the same problem should be done as well by the forum court.
Atty. T: if you look at the tenor of the decision, it’s couched in the
mandatory word “shall”. So an argument can be made that if the court
in the Philippines is confronted with a problem of the renvoi, the
solution should be to accept the referring back of the issue to us and
apply our internal law.
I have not yet seen any contrary rule on the matter, I believe Christensen
is still the prevailing doctrine.
How do you reconcile this with the case of GIBBS?
The focus on the case of Gibbs is in the manner of acquisition, how the
husband came to own the entire property.
Husband said that under their own law, it’s through accretion not
succession.
The Characterization made by our courts is that it’s a property issue and
therefore we apply Lex Rei Sitae. After applying Lex Rei Sitae, we apply
ownership by spouses.
13

CONFLICT RULES ON CONTRACTS
Contract is another category. It has its own connecting factor insofar as
the contract being the factual problem. The issue is all about contract
because there is a breach of contract, parties argue about the validity of
the contract, validity of the termination or the validity of the subject
matter.
If the conflict of law problem is categorized as dispute over contracts,
what is the connecting factor?
For purposes of resolving contractual disputes insofar as conflict of laws
rule, we need to identify three components of a contract because these
different are also governed by different connecting factors.
Three Components of a Contract
1) EXTRINSIC ASPECT of the contract
2) INTRINSIC ASPECT of the contract
3) CAPACITY of the contracting parties
If the issue is about the capacity of the contract, we need to examine
these three components because for the contract to be valid and
enforceable the contract must be extrinsically valid, intrinsically valid
and the parties must have the capacity to enter into contracts.
So if the question calls for determination of validity, you need to
examine which aspect. If it is not specified, you need to examine all
aspects. Because we cannot consider a contract valid if it is only valid as
to one aspect but invalid as to the rest. If the contact is extrinsically
invalid, even if it is intrinsically valid, it cannot be a valid contract.
But there may be problems as when the question is specific. If the
question requires only for the determination of the extrinsic validity,
then limit yourself only as to the extrinsic aspect and never mind the
other aspects because I may have a purpose there.
(1) EXTRINSIC VALIDITY
Extrinsic Validity
This refers to the forms and solemnities that will make a contract valid.
Issues relating to the forms and solemnities of a contract:
1) Whether the contract verbally executed is valid.
2) Whether the contract is valid even if in writing but not notarize
is valid.
3) Whether the contract is valid even if in writing, notarized but
no witnesses.
Example:
A contract executed abroad and in that country a verbal contract is
valid, but in the Philippines that contract must be in writing to be
valid. So there might be a conflict of law issue here on the extrinsic
validity of the contract.
EH404 | 2017-2018
So what it the connecting factor as to the extrinsic validity of the
contract?
The answer is provided under article 17 which refers to lex loci
celebracionis.
Article 17, Civil Code
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.
Example:
The contract is executed in China even if it involves Filipinos and the
subject matter is to be performed in the Philippines.
The extrinsic validity of the contract is to be governed by the laws of
China and not by the laws of the Philippines, because the contract was
executed in China, consistent with lex loci celebracionis.
But there are limitations to this rule.
First Exception
There might be an instance that even if the contract was executed
according to the laws of another country, the laws of that country may
not be the law that will determine the extrinsic validity of the contract.
This is when the law of that country has nothing to do at all with the
significant aspects of the contract, as when the place of execution was
merely incidental to the contract.
Example:
Mr. Villanueva and Ms. Cagang both went to Vietnam for a
vacation. They happened to be boarding the same flight and while
waiting for boarding, they immediately entered into contract for
service, lingam massage. So a contract was drafted and signed by
both parties to be performed in the Philippines. Supposed that in
Vietnam the contract must be notarized for it to be valid. But this
kind of contract can be verbally entered into in the Philippines.
Supposed Ms. Cagang actually performed her service, the contract
was in writing but performed orally. So Mr. Villanueva complained
and filed a suit for rescission and return of the contract price. The
defense is that the contract is unenforceable and no rights can arise
from the said contract because it was extrinsically void.
So the issue is on the extrinsic validity of the contract?
It appears that the contract is void but this is an instance when that place
of execution is merely incidental. Under the circumstances, the parties
are both Filipino citizens and the contract is to be performed and
actually performed in the Philippines. Therefore, lex loci celebracionis
principle will not apply.
What is then the applicable provision to determine the extrinsic
validity of the contract?
The Most Significant Relationship Rule will now apply. The court will
have to examine the significant aspects of the contract and determine
to which country these significant components relate to.
In the example, all the significant components relate to Philippine law.
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Second Exception Example:

If the contract involves property, sale of real property. The property is
located in the Philippines but the contract was executed in China
involving two Chinese citizens and payment was in China.
The contract was executed in the form that is void under Chinese law
but valid under Philippine law.
We apply Lex Loci Celebraciones, then Philippine law should govern.
However, this is an exception to the rule since this is a contract that
involves property.
Therefore, this time around we apply the one under Art. 16 (Par. 1)
pursuant to Lex Rei Sitae. So if the contract involves a property, extrinsic
validity of the same shall be determined by Lei Rei Sitae as an exception
to Lex Loci Celebracionis.
(2) INTRINSIC VALIDITY
The intrinsic validity deal with the substantive aspect of the contract.
There are specific issues that relate to the intrinsic or substantive aspect
of the contract. For example, the subject matter.
Example: Lingam Massage Services is the subject matter
Under the country that the contract was made, it is perfectly valid
but not in the Philippines because we are a conservative, religious
country. So the issue is about validity of the contract which relates
to the substantive aspect of the contract. It should be determined
not by Lex Loci Celebraciones but by Lex Contractus.
All parties to the contract are Asians (Japanese and Chinese).
Negotiation was done in China, Perfection in Japan, Performance
in the Philippines. But their Choice of Law as expressly stated in
the contract was Afghanistan. Afghanistan has nothing to do with
the parties and the contract.
Take Note: When the option of Lex Voluntatis cannot be applied, then
apply Law Intentionis.
How is Lex Intentionis determined?
This can be resolved by applying the principle of Most Significant
Relationship Rule. The court will determine various components of the
contract and find out which of these countries the various components
relate to.
What if, in the given set of facts, it cannot be determined which specific
country has the Most Significant Relationship?
This is the third option. You apply the law of the country where that
contract is more likely to be upheld as valid. The reason being is that this
is consistent with the Liberality of Contracts that we adhere to here in
the Philippines which provides that parties to the contract are free to
stipulate any terms and conditions in the contract as long as it is not
contrary to law, morals, good customs, public policy and public order.
The policy of our jurisdiction is to give effect to the intention and
agreement of the parties; favor the validity of the contract.

Under the intrinsic validity, the Philippines has no specific provision

which deals with intrinsic validity and conflict of laws problems. But
under existing literature, writers and authorities are one in saying that (3) CAPACITY OF THE CONTRACTING PARTIES
for purposes of determining the intrinsic validty of the contract, we
General Rule:
should follow Lex Contractus referring to Lex Voluntatis and Lex
Intentionis because these are consistent with the principle of the Art. 15 (Nationality Theory)
liberality of contracts.
Art. 15. Laws relating to family rights and duties, or to the status,
condition and legal capacity of persons are binding upon citizens
of the Philippines, even though living abroad.
What is Lex Contractus for purposes of Conflict of Law?
This principle actually relates to either Lex Voluntatis and Lex
Intentionis. Exception: if the contract involves property since all the components of
the contract (extrinsic, intrinsic) are governed by Lex Rei Sitae
 Lex Voluntatis- refers to the law expressly agreed upon by the
parties. ORDINARY CONTRACTS CONTRACTS INVOLVING
PROPERTY
 Lex Intentionis- refers to the law impliedly agreed upon by the
parties. Ordinary contracts are contracts Only involves property.
that do not involve property.

How is Lex Voluntatis determined? The three components (extrinsic, The three components (extrinsic,
intrinsic and legal capacity) are intrinsic and legal capacity) are
This can be easily determined by looking at the contract itself. This is governed by different rules. governed by one and the same
commonly expressed in the Choice of Law clause. In foreign contracts, rule which is Lex Rei Sitae.
EXTRINSIC: Lex Loci
this is a common clause such that if the contract provides for the choice
Celebraciones
of law, then apply that.
INTRINSIC: Lex Contractus (Lex
Voluntatis or Lex Intentionis)
Limitation of Lex Voluntatis:
CAPACITY: Nationality Theory
Law specifically chosen by the parties has no relation at all to the
various aspects of the contract such as the parties of the contract.

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CONFLICT RULES ON PROPERTY What are the Issues Governed by Lex Rei Sitae?

General Rule: a) Ownership of the property

The contract involving property is governed by its own connecting factor b) Possession of the property
which is Art. 16 (Par.1). All the components should be determined by c) Co-Ownership
Lex Rei Sitae.
d) Disposition
Art. 16. Real property as well as personal property is subject to
the law of the country where it is situated. e) Encumbrance
f) Alienation of the property

Exceptions: g) Prescription

1) The property involved in the contract is only incidental. The h) Registration

primary contract is really that of service or any other contract i) Mortgage
which is not the property itself. The rule applicable is that which
governs ordinary contract. j) Partition
Example: Contract of Interior Design k) Eminent Domain
Mr. Villanueva is a world-renowned interior designer. Mr. l) Accretion
Rellevo engaged the services of the former to do the interior
decoration in the newly built mansion of the latter. Obviously,
this involves a property but this is actually a contract that of Take Note: Lex Rei Sitae applies to both real and personal properties.
service specifically the interior design service of Mr.
Villanueva. The property is just incidental. (Sir mentioned the cases of Laurel vs Garcia and Republic vs
Sandiganbayan)

Example: Contract of Painting

Mr. Villanueva is a world-renowned painter. Ms. Balagon
engaged the services of Mr. Villanueva to paint giant face of
Ms. Balagon at the front door of her house. This involves
property which is the door of the house but this is actually a
contract of service. The property is just incidental.

2) Where the issue of ownership of the property is intertwined with

issues concerning succession.
Example: A Claim that he is one of the heirs of the property
Mr. Villanueva alleges that he is one of the heirs of Mr.
Cuizon;s properties. Such that he has a share in the property
of the decedent. This involves a property however, the issue
of ownership is intertwined on succession. This is not
governed anymore by the operation of the principle of Lex Rei
Sitae. This is now on the ambit of succession which has its own
connecting factor. This relates now to the issue of capacity of
the heir to inherit. The connecting factor then is Art.1039
which provides for the capacity of the heir to inherit based on
the national law of the decedent.

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CONFLICT RULES ON WILLS & SUCCESSION
If the factual problem is characterized as that of succession, we only
have to be concerned with two components: extrinsic and intrinsic. No
separate rule for legal capacity of the testator to make the will and legal
capacity of the heir to inherit. This is because the capacity of the heir to
inherit is already subsumed in the intrinsic which is governed by the
national law of the decedent. The capacity of the testator to make the
will is considered extrinsic.
EXTRINSIC VALIDITY
Extrinsic aspect of the will consists of the forms and the solemnities of
the will.
The principal law that governs extrinsic is Art. 17, NCC which is lex loci
celebracionis. But that is not all there is to it.
Because if you look at 815, 816 and 817, it would appear that the
extrinsic validity of the will is determined not only by lex loci
celebracionis but by other laws depending on the citizenship of the
testator and the country where the will was executed.
RULES:
 If the testator is a FOREIGNER
 Will is executed ABROAD
He can execute a will following the formalities prescribed by
the following laws (Art. 816, NCC):
a) Lex Loci Celebracionis (Art. 17)
b) National of the testator
c) Domiciliary Theory – the law of the country of which
the testator is a domicile or resident
d) Philippine Law- a foreigner can execute a will
abroad following Philippine law.
Atty. T: So that, even if the will is invalid or void under the 3
laws involved, the will can still be salvaged as valid under the
4th one, if it is valid under it because he can follow either of
the laws prescribed in this 4 possible countries.
If you are the proponent, you just have to prove in court
during the probate proceedings that the will was executed in
accordance with the laws of the country where it is likely to be
approved as valid.
This is expressly allowed if the testator is foreigner.
 Will executed in the PHILIPPINES (Art. 817, NCC)
a) National Law
b) Philippine Law
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 If the testator is a FILIPINO
 Will executed ABROAD (ART. 815, NCC)
 There is only one law that it should be followed, in so far
as the forms and formalities of the will, and that’s LEX
LOCI CELERACIONIS (ART. 17, NCC). ART. 815 is
consistent with Art. 17.
Atty. T: There is no provision in our law that allows Filipinos to
execute a will abroad following Philippine laws.
But we have the opinion of the renowned opinion in Civil Law,
Dr. Arturo Tolentino, where he criticized the obvious injustice
that the present laws caused the Filipino citizens who are
discriminated against applying their own laws in so far as
execution of wills outside of the country.
Tolentino advocated the rule that Filipinos executed wills
abroad should also be allowed to observe Philippine laws
because it not the intention of the framers to discriminate the
Filipinos on matters of availing Philippine laws when they
execute wills abroad.
There is no legal basis for this opinion because there really is
no provision that supports but in many bar examinations in
the past, this particular question is asked many times and the
suggested answers provided by reviewers, law deans and
other writers seem to share the opinion of Tolentino.
So I would like to believe that an answer given which is align
to Tolentino’s view would be given credit but to me, the
appropriate solution here is legislation and not just an
opinion. Because an opinion of a writer can be persuasive but
it is not a law however persuasive sound it may be.
 Will executed in the PHILIPPINES
 PHILIPPINE LAW
Why is the capacity of the testator governed by any of the laws that
governs the extrinsic validity of the will?
The justification here is that, during the probate of the will, one of the
matters need to be establish is the capacity of the testator to make a
will is that the testator is of sound and disposing mind to make a will.
That is why it is considered as part of the extrinsic. Unlike ordinary
contracts, it is treated separately.
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INTRINSIC VALIDITY After which, the court will issue an order of probate
the will.
The governing law in so far as the intrinsic validity is the national law of
the testator (Art. 16, par. 2).
2) Second stage is the appointment of the executor or
administrator and implementation of the testamentary
Specific matters falling under Intrinsic Aspect of the Will:
provisions of the will.
1) Order of Succession
More often than not, it is during this stage, that questions
2) Amount of Successional Rights may arise as to the intrinsic validity of the will.

3) Validity of the Testamentary Provisions in a Will

4) Capacity of an Heir to Inherit is governed not by the national
law of the heir but the national law of the decedent. (Art.
1039, NCC)
(2) Will executed abroad was already probated abroad but involves
properties located here in the Philippines (REPROBATE).
Atty. T: The requirement is that the will cannot be enforced in the
Philippines unless it also undergo the process of reprobate.

Atty T: Validity of the extrinsic aspect of a will is determined based on But the proceedings this time is shorter than the probate of the
the law enforced at the time of the execution. foreign will probated first time in the Philippines.

However, if the law was amended for purposes of the validity of the will,
and it will be different from that at the time it was executed, it will not
In the reprobate, it is no longer required to prove the genuineness
affect the extrinsic validity, for what governs the extrinsic aspect is the
and due execution of the will.
law at the time of the execution of the will.
What is only required during the reprobate is the proof of the
The reason for this is obvious, because the testator cannot comply the
existence of the will and the decision of the foreign court approving
formalities to be prescribed by future law.
the will.
He is expected to comply the formalities prescribed by the present law
You need to prove the genuineness, existence and the authenticity
existing at the time of execution. He should not be faulted in any
of the judgment rendered by the foreign court.
changes in the law after the execution.
On the other hand, the intrinsic validity of the will is determined on the
basis of the law at the time of the death of the testator, not the law at You need to Prove Two Foreign Laws – the purpose of which is for
the time of the execution. the Philippine court to determine if the will was really executed in
accordance with the law abroad under which it was executed and
The logic of this ruling is also obvious because a will takes effect only
to determine of the will was validity probated before that foreign
after the death of the testator.
court:
1) Prove the foreign law which requires the prescribed
PROBATE OF WILLS forms and solemnities of the will.

Atty T: Probate of the will is governed by special proceedings but the
one which is of particular interest to us is the proceeding involving the
reprobate of a will already probated abroad. It is invested with a foreign
element if the will is executed abroad and probated abroad.
There are Two Ways to Probate a Will Executed Abroad:
(1) Will probated abroad involving properties in the Philippines
maybe probated for the first time in the Philippines.
2) Prove the foreign law that deals with the procedure on
probate of a will.
It is not required that during this stage, the one submitting the will
for probate is not required that it should prove the intrinsic validity
of the will because during the probate proceedings, the only
concern of the court there is only the extrinsic validity of the will.

STAGES:
1) The first stage is that part where the proponent or the
one who submits the will for probate shall prove the
extrinsic validity of the will.
The probate per se refers to the proof of the extrinsic
validity of the will and you don’t talk about the intrinsic
aspect of the will.
 Prove that all the formalities required under the law
by which this will is executed were complied with. If
the court is convinced that the extrinsic aspect of
the will is in accordance with the law under which it
was executed and present witness to prove the
genuineness and due execution of the will.

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CONFLICT OF LAW RULES ON MARRIAGE Based on Art. 26, the COL Rules on marriage shall govern the following
situations:
If the problem is characterized as one involving marriage, the connecting
factor is Art. 26 of the Family Code (Lex Loci Celebracionis). 1) Marriage between Filipinos abroad;

The rule is, if the marriage is valid in the country of celebration, that
marriage should be valid in the Philippines except if it falls under the
EXCEPTIONS:
(1) Art. 35, paragraphs 1, 4, 5 and 6
Example:
Mr. Villanueva and Ms. Balagon, both Filipinos, celebrated
their marriage in HK. GR, if valid in HK then valid in the
Philippines except if the marriage falls under the exceptions.

1) Marriages contracted by any party below 18 years of age 2) Marriage between Foreigners abroad;

2) Bigamous or polygamous marriages  The rule is if valid abroad, then it should be valid in the
Philippines. If the exceptions apply to them, then except
3) Contracted through mistake of one of the parties if the marriage falls under the exceptions.
4) Marriages that are void under Art. 53 3) Marriage between Foreigners in the Philippines;
(2) Art. 36 of the Family Code 4) Marriage between a Foreigner and a Filipino in the
 Psychological incapacity Philippines;

(3) Art. 37 of the Family Code 5) Marriage between a Foreigner and Filipino abroad

 Incestous Marriage  Again, GR if valid abroad, valid in the Philippines but they
are both governed by the exceptions
(4) Article 38 of the Family Code
The following marriages shall be void from the beginning for
reasons of public policy: Atty. T: But there are different views. There are those that advocate the
view that the exceptions in Art. 26 apply only to the Filipinos because
a) Between collateral blood relatives whether legitimate or these matters concern personal status, condition and capacity and
illegitimate, up to the fourth civil degree; therefore governed by Nationality Principle.
b) Between step-parents and step-children; So the exceptions should only be applicable to Filipinos. Now if this is
c) Between parents-in-law and children-in-law; the interpretation, this would accordingly modify the legal equation
such that if the marriage is between foreigners abroad, if valid in the
d) Between the adopting parent and the adopted child; country of celebration then it should also be valid in the Philippines even
if void under Art. 35, 36, 37 and 38 because they are not governed by
e) Between the surviving spouse of the adopting parent and
the exceptions.
the adopted child;
Next, marriage between foreigners and Filipinos abroad, if valid in the
f) Between the surviving spouse of the adopted child and
country of celebration, valid there.
the adopter;
This is now the problem because if the Filipino is governed by the
g) Between an adopted child and a legitimate child of the
exception, then the marriage is void in so far as the Filipino but valid in
adopter;
so far as the foreigner because the foreigner is not supposed to be
h) Between adopted children of the same adopter, and governed by the exceptions.
i) Between parties where one, with the intention to marry If it’s valid there, it should be valid all throughout. This will result in a
the other, killed that other person's spouse, or his or her hybrid marriage, partly valid in so far as foreigner and partly void in so
own spouse. far as Filipino.

If the marriage does not fall under any of the exceptions, then GR is the
marriage is valid if valid abroad.
The problem, however, is whether these exceptions apply to both
Filipinos or foreigners.
You look at Art. 26, it does not make any distinction. It only expressly
provides that if marriage is valid at the country of celebration, then it
should be valid in the Philippines except those marriages enumerated.
So what is the suggested solution here?
PARAS came up with a suggestion. He said in a situation like this we have
to apply the policy in our jurisdiction which favors marriage.
Our policy is for validity of marriage. This country is so in love with
marriage that all doubt should be resolved in favor of marriage.
But if you look at this, this contradicts the Nationality Theory because
the premise of the view that the exceptions will only be applicable to
the Filipinos is that this is consistent with Nationality Rule.
But in a situation where the marriage falls under any of the exceptions
and therefore void in so far as the Filipino but valid in so far as the
foreigner, Paras said it should be valid. It’s no longer consistent with
Nationality Theory.

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On the other hand, AGPALO holds the view that among the exceptions
there, only one should be applicable to the Filipinos and that’s Art. 35,
par 1 concerning age.
According to him, where either of the parties below 18 should only be
applicable to Filipinos. He did not mention the rest of the exceptions in
26. He said suppose the marriage was executed in Germany between a
Filipino and a German citizen.
The German is 16 years old and the Filipino is 18. Under German law,
the age of majority is 15.
How are we supposed to treat the marriage?
It is valid in Germany. But if we apply the exception in 26
particularly 35 par. 1, that marriage should be void because one of
them is below 18.
On the other hand, if that marriage was solemnized in the
Philippines, legal capacity of the foreigner is determined by his
National Law and therefore, the marriage is valid even if he is 16
because our Family Code expressly provides in so far as foreigners
are concerned, their requirement is legal capacity to contract
marriage.
In order to resolve this absurd situation, Agpalo suggested that
this exception 35 par 1 should only be applicable to Filipinos so
that in my example, even if the German is below 18, that marriage
should be valid in the same manner, if it was celebrated in the
Philippines, that marriage should be valid.
But Agpalo was not courageous enough to extend this to the other
exceptions unlike Paras. Up to now, these issues have not been
settled.
EH404 | 2017-2018
DIVORCE
Atty. T: The inclusion of the second paragraph which says that in a
marriage between a Filipino and a foreigner validly celebrated and a
divorce decree was thereafter validly obtained by the alien spouse.
If the divorce capacitates the foreign spouse to remarry, the divorce
should likewise capacitate the Filipino spouse to remarry.
This inclusion traces its umbilical cord to the controversial rulings in the
earlier cases of Van Dorn v. Romillo.
The SC said while divorce is against public policy in the Philippines, this
rule only applies to Filipinos but in so far as foreigners are concerned,
they are governed by the divorce obtained abroad so long as it is valid
under their own National Law.
The SC was conspicuously silent as to the effect of the divorce in so far
as the Filipino spouse is concerned. It would appear that the SC made a
selective recognition of the divorce in so far as the alien spouse is
concerned but the result of this ruling is the absurd situation where
while the alien spouse ceases to be married to the Filipino spouse, the
Filipino spouse remains married to someone who is no longer his
spouse.
To rectify this situation, the second paragraph of Art. 26 was included.
This time, the purpose is to level the playing field.
If the alien spouse is capacitated to remarry as a result of the divorce
decree, the Filipino spouse should likewise be allowed to remarry.
In effect, this is the provision wherein the law expressly recognized the
validity of the divorce even if it is against public policy.
Now, let’s go to the dynamics of remarriage but take note that Art. 26
par 2 does not only apply to a marriage between a Filipino and an alien
spouse but it also applies to a situation where the marriage was
between two Filipinos but one subsequently or both acquired alien
citizenship and when already alien, he or she obtained the divorce
decree.
In the case of OBRECIDO, the SC said that the reckoning period for
purposes of complying with the requirements of citizenship is the time
of obtaining the divorce decree.
Originally, what as contemplated at that time was that of mixed
marriages where one is an alien and the other a Filipino but by virtue of
Obresido, this was expanded to include marriage between Filipinos but
the time the divorce decree was obtained, one of them or both were
already alien/s and it was the alien who obtained the divorce decree.
What do we do as lawyers when your client comes to you to tell you
that he can now remarry or he wants to remarry because the marriage
to the foreigner was already dissolved because of a divorce decree
obtained by the foreigner?
Take Note, while Art. 26 does not provide or impose any condition.,
jurisprudence has it that the capacity of the Filipino spouse to remarry
as a result of the divorce decree obtained by the alien spouse does not
come as a matter of course.
It is not automatic because under Obrecido, the Filipino spouse is still
required to go to court to have that divorce decree recognized in the
Philippines.
Divorce decrees come in the form of a foreign judgment and foreign
judgments can only be implemented if recognized in the appropriate
judicial proceedings.
20

The remedy suggested by the SC in Obrecido is the filing of a petition of
declaratory relief through Rule 63 of the ROC.
What happens if it is the other way around?
The alien spouse who obtained the divorce decree comes to you and
tries his luck with another Filipina.
In Corpus vs. Santo Tomas, there are two remedies available for the
alien spouse who obtained the divorce decree abroad:
(1) He may file an ACTION FOR RECOGNITION OF A FOREIGN
JUDGMENT of divorce.
Take note that the cause of action of the foreigner who wants
to remarry in the Philippines after obtaining the divorce
decree abroad cannot be sanctioned under Art. 26 par 2
because that paragraph is only reserved for the Filipino
spouse.
He can, however, have the divorce decree recognized in the
Philippines under Rule 39 of the ROC on effect of foreign
judgment.
Like the Filipino spouse who needs to go to court for
declaratory relief, the alien spouse who obtained the divorce
decree and wishes to remarry in the Philippines should also go
to court.
(2) Once the divorce judgment is recognized by our court under
the Corpus doctrine, the alien spouse needs to file another
petition which is the PETITION FOR CHANGE OR CORRECTION
OF ENTRY in his Marriage Records to reflect that the previous
marriage has now been dissolved by reason of the divorce
decree.
So under the first remedy, the alien spouse needs to file two
petitions in court one after the other; recognition of the
divorce and file the corresponding correction or change of
entry.
But the SC in the very same case of Corpus said that this remedy/s might
prove to be burdensome or time consuming so the SC suggested that
there is nothing that prevents the alien spouse from directly filing a
petition for correction or change of entry under Rule 108 of the ROC and
in that same proceeding, hit two birds with one stone.
In the end, the suggested remedy is file a petition for correction or
cancellation under Rule 108 and obtain both relief; Recognition of the
Foreign Divorce and the Corresponding Change of the Entries.
Why is change or cancellation required?
Before all the divorced spouse had to do was just submit an
authenticated copy of the divorce decree to the NSO, to the Registrant
General in Manila and that would be enough for him to remarry.
But when things were getting complicated - incidence of bigamy,
polygamous marriage have become rampant in the PH, the Civil
Registrar General came up with the requirement that for every applicant
for a marriage license, they should submit one of the requirements this
document called CENOMAR (Certificate of No Marriage).
This CENOMAR will prove that the applicant was not previously married.
EH404 | 2017-2018
How does this affect people who were previously married,
obtained a divorce, and applied for a second marriage?
If for example a German and a Filipina were previously married and
the German obtained a divorce, the German will be required to
obtain a CENOMAR and he cannot obtain that because, in so far as
the NSO is concerned, the records will show that he is still married.
So there is a need now to correct the records available at the Civil
Registrar’s office.
How is this achieved?
By filling a Petition for Cancellation or Correction under RULE 108
because the Local Civil Register cannot effect any change or correct
any entries available in the records without a court order.
Q: In the VAN DORN case, what if it was the Filipina Wife who went to
court and said that the divorce decree does not bind her therefore she
should be granted management of the business. Will that prosper?
To be consistent with the policy that the divorce cannot be recognized
as valid in so far as the Filipina then it might be argued that the wife is
still married. It’s legally possible. The basis is the selective recognition of
the validity of the divorce decree.
The Premise in Van Dorn is in so far as the foreigner is concerned, the
foreigner is bound because that is his national law and he is bound by
his national law. Impliedly, the Filipina is not bound because divorce is
not valid under her national law. That’s why the observation of the
legislators there is the Filipina remains to be married.
NOTE: This is only relevant before the amendment of Article 26 of the
Civil Code (the addition of the 2nd Paragraph). Today, the Filipino spouse
is also bound by the divorce decree obtained by the alien spouse.
What do you need to prove in a proceeding for declaratory relief in
case it’s a FILIPINO spouse who comes to you and wishes to remarry?
OBRECIDO said that you need 3 matters during the proceedings:
(1) Prove the Existence and Authenticity of the Divorce decree
How?
Rule 132 Sections 24 & 25:
(a) By Official Publication
(b) By Certified True Copy of the Divorce Decree
 Attested by the Legal Custodian; and
 Consularized(?) by the Philippine Consular
Office
(2) Demonstrate the Divorce Decree’s conformity to the laws
allowing it.
Prove the foreign law under which the divorce was obtained
then demonstrate divorce decree’s conformity to such foreign
law.
(3) Prove that the Divorce Decree capacitates the alien spouse
to remarry.
The divorce must be absolute not just the relative one.
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What is this Foreign Law that needs to be established in the course of

the proceedings?
The foreign law to prove that the divorce decree was obtained in
conformity with this foreign law.
 If the alien spouse obtained the divorce decree from his own
country – Prove the law of his country.
 If the divorce decree was obtained by the alien spouse in a
country other than his own country (US Citizen obtaining a
divorce decree in the Dominican Republic) – Here lies the
problem. But in the case of BAYOT vs BAYOT the Supreme
Court said that you should prove the National Law of the alien
spouse.

LEGAL SEPARATION
Grounds for Legal Separation are governed by the NATIONALITY
THEORY
Anybody can file legal separation in the Philippines so long as they are
in the Philippines.
Anybody can file regardless of citizenship, our courts is not exclusive to
Filipinos. So foreigners can come and file a petition for legal separation.
The only requirement is that they’re here and that jurisdiction over the
defendant can be acquired for the court to entertain the petition.
But considering that they are aliens, the GROUNDS FOR LEGAL
SEPARATION are those provided for under their NATIONAL LAW, not
by Philippines law. (German = Grounds under German Law)
If the parties are of different citizenship – The grounds under ANY of
their laws.

NULLITY OF MARRIAGE / ANNULMENT

Grounds for Nullity is governed by LEX LOCI CELEBRACIONIS subject to
the Exceptions.
The same law/rule that governs the validity of the marriage because
annulment is just the other side of the same coin. So it remains to be
the same rule (ART. 26). The law that provides for validity should be the
same law that provides for the invalidity.
So if the marriage was solemnized abroad and is considered as invalid
under the laws of the said country, then make use of that ground in the
petition for nullity in the Philippines.
Plus, if the party or if one of the parties is a Filipino, apply the exceptions
under ART. 26.

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