PRIVATE INTERNATIONAL PUBLIC INTERNATIONAL

Conflict of Laws (Private LAW LAW

International Law) Municipal in character International in character
Persons involved: private Sovereign states and other
PRIVATE INTERNATIONAL LAW (PrIL) individuals entities which possess
international personality
Transactions involved: Transactions which generally
Private international law is the formal name for conflicts of law
private transactions b/w affect public interest, or of
(COL).
private individuals interest only to sovereign
states
1. Definition:
Remedies / sanctions: resort Remedies may be peaceful
a. part of municipal (domestic) law of a state

to municipal tribunals or forcible
b. which directs its courts & administrative agencies,

c. when confronted with a legal problem involving a
foreign element, Key Ideas on Conflict of Laws

d. whether or not they should apply foreign law/s or not.
1. Conflict rules apply when the problem at hand has a
2. Functions of public international law
 s. FOREIGN ELEMENT.1
a. JN: determination which country has jurisdiction  Otherwise, just apply the law of the forum (another
(jn)
 b. term for DOMESTIC LAW = lex ordinandi = lex fori; the
b. place/venue: applicability of a particular place of law of the jurisdiction where the case is pending.)
either the local or foreign law

c. determination of the force, validity & effectiveness of 2. Study the steps followed by courts when confronted with a
a foreign judgment.
 case involving a foreign element: see notes, infra.
a. Determine whether it has jurisdiction (JN)

3. private international law (pril) vs. public international law i. If NO: Dismiss the case
 ii.
(pil): two schools of thought ii. If YES: the court will determine whether:
a. monist school: both are essentially the same, a) it will it assume JN or
because they manifest a single concept of law, b) dismiss the case on the ground of
ultimately addressed to the same individual. Forum Non-Conveniens (infra)
b. dualist school: b. If the Court assumes JN, it will determine whether to
apply
i. the law of the forum (internal/domestic law) or

1 This attribute or incident of a case determine whether it is a conflict-of-

laws case or one covered by domestic law. (2012 BAR) a) Cause of action;
b) Foreign element; c) Jurisdiction; d) Forum non conveniens
 ii. the proper foreign law
 a. apply the local/domestic law (lex fori)
3. How to answer Conflict cases:
 Art 17 provides that FORMS & SOLEMNITIES of
contracts shall be governed by the law of the country in
which they are EXECUTED under the doctrine of LEX
LOCI CELEBRATIONIS.
 Hence, the applicable laws will be those of the foreign
country. Whether or not the contract is valid
depends on the laws of that foreign country (Do
NOT PRETEND to know those laws; it is enough to
mention that)
Forum non conveniens [fnc] or forum inconveniens
1. Latin "an unsuitable court”;2 the forum is inconvenient;3
refers to the refusal of the court to assume JN because it
would prove inconvenient for the forum.
 Hence, when the incidents of the case occurred
outside, the PH courts is an inconvenient forum
although it may take JN over the case.
2. Purpose: to deter the practice of global forum shopping;
NB: the inconvenience pertains to the tribunal, not to the
parties.
3. When the court assumes jn, it will still have two options:
2 in civil procedure: the doctrine that an appropriate forum—even though
competent under the law— may divest itself of jurisdiction if, for the
convenience of the litigants and the witnesses, it appears that the action
should proceed in another forum in which the action might also have been
properly brought in the first place.
3 "forum non conveniens allows a court to exercise its discretion to avoid the
oppression or vexation that might result from automatically honoring
plaintiff's forum choice. However, dismissal on the basis of forum non
conveniens also requires that there be an alternative forum in which the
suit can be prosecuted. It must appear that jurisdiction over all parties can


b. or the proper foreign law (lex causae)
4. When a court is deemed inconvenient (ecbc-nid)
a. 
 evidence & witnesses may not be readily available
in the forum

b. court dockets of the forum are already clogged and
that would hamper the speedy administration of
justice.

c. the matter can be better tried and decided in another
forum

d. to curb the evils of forum shopping
e. 
 the forum has no particular interest in the case, as
when the parties are not citizens of the forum or are
residents elsewhere
f. 
 inadequacy of the local judicial machinery in
effectuating the right sought to be enforced
g. 
 difficulty in ascertaining the foreign law applicable
5. When a court is deemed convenient—requisites:
a. 
 that the Philippine court is one to which the parties
may conveniently resort to;
b. 
 that the Philippine court is in a position to make an
intelligent decision as to the law and the facts; and
c. that the Philippine court has or is likely to have power
to enforce its decision.
be secured and that complete
 relief can be obtained in the supposedly
more convenient court. Further, in at least some states, it has been held that
the doctrine cannot be successfully invoked when the plaintiff is resident of
the forum state since, effectively, one of the functions of the state courts is to
provide a tribunal in which their residents can obtain an adjudication of their
grievances. But in most instances a balancing of the convenience to all the
parties will be considered and no one factor will preclude a forum non
conveniens dismissal as long as another forum is available."

 6. leading case in FNC: Communication materials and
design, Inc. vs. CA and Itec International 1996
a. Petitioner was challenging Itec’s personality to sue
in PH, it being a foreign corporation not registered in
sec
b. PH corporation is estopped from challenging the
personality of a foreign corporation after having
acknowledged the same by entering into a contract
with it.
c. Applicable rule—Latin: commodum ex injuria sua non
habere debet:4 no person ought to derive any
advantage out of his own wrong doing.
d. As to petitioner’s argument on the application of fnc:
misplaced argument because the court has already
acquired jn.
e. the court may refuse to assume jn inspite of having
acquired jn.
f. should the court decide to assume jn, the following
requisites have to be met (supra);5
Internal Law vs. Foreign Law
1. The foreign law has to be pleaded & proved in the forum for
it to apply. How?
 Guidelines for pleading and proving foreign law and
divorce judgments [Garcia v. Recio]: presentation
solely of the divorce decree is insufficient and that
proof of its authenticity and due execution must be
4 *this is connected with art 19 ncc; SC: the rule is deeply rooted in the time-
honored axiom of commodum ex injuria sua non habere debet - no person
ought to derive any advantage of his own wrong. this is as it should be for as
mandated by law, "every person must in the exercise of his rights and in the
performance of his duties, act with justice, give everyone his due, and
observe honesty and good faith."
5 *sc: thus, having acquired jurisdiction, it is now for the Philippine court,
based on the facts of the case, whether to give due course to the suit or
dismiss it, on the principle of forum non conveniens. hence, the Philippine
presente—it must also be shown the foreigner is
capacitated to remarry.
 Under Sections 24 and 25 of Rule 132, a writing or
document may be proven as a public or official record
of a foreign country by either
1. an official publication or
2. a copy thereof attested by the officer having legal
custody of the document. If the record is not kept
in the Philippines, such copy must be:
a) accompanied by a certificate issued by the
proper diplomatic or consular officer in the
Philippine foreign service stationed in the
foreign country in which the record is kept and
b) authenticated by the seal of his office.
2. In case of failure to plead & prove foreign law:
a. DISMISS the case for failure to establish a cause of
action;
b. Apply the law of the forum;

c. c. Apply the doctrine of PROCESSUAL
PRESUMPTION (infra)
Doctrine/Principle of processual presumption
1. This has something to do with invocation of foreign laws in
PH. Whenever a foreign law is invoked in PH, the one making
that invocation is obliged to prove first the existence of that
foreign law.
court may refuse to assume jurisdiction in spite of its having acquired
jurisdiction. conversely, the court may assume jurisdiction over the case if it
chooses to do so; provided, that the following requisites are met: [see the 3
requisites supra] The aforesaid requirements having been met, and in view
of the court’s disposition to give due course to the questioned action, the
matter of the present forum not being the "most convenient" as a ground for
the suit’s dismissal, deserves scant consideration.
  If the latter cannot be established, then the
presumption is that it is the same as PH law. Hence,
the applicable law becomes PH law.
2. In rule form:
a. 
 GR: the foreign law (FL) must be pleaded and proved
as fact. The party whose cause of action or defense
depended on the FL has the BURDEN OF PROVING
the FL (FL must be proved like any other FACT in
dispute between the parties)
b. XPN: the court may take judicial notice of the foreign
laws which are already within its actual knowledge,
such as, when
i. they are WELL & GENERALLY KNOWN
ii. or they have been ACTUALLY RULED UPON
in OTHER CASES BEFORE it and NONE of the
PARTIES concerned do not claim otherwise.
INSTANCES WHEN THE INTERNAL/DOMESTIC LAW CAN
BE APPLIED

 1. When the conflict rules so provide.
 EG: renvoi doctrine (cf. Art. 16)
2. Failure to properly plead and prove the proper foreign law.
 Effect: apply the doctrine of processual presumption,
supra.
 EG: Under Art 26 FC, a Japanese (J) who divorced his
Filipina (F) wife under Japanese law can have the
divorce decree recognised in PH. But if he does not
attach the Japanese law, even if the Japanese law
applies, PH law will be applied by the court.
3. The case falls under the 8 basic exceptions to the
application of the proper foreign law (Paras; 2004 Bar): CB-
PP-Pm-Pc-Pf-PR & UI-VI
1. when the foreign law, judgment or contract (FL/J/C) is
contrary to universally-conceded (recognized)
principles of morality: CONTRA BONOS MORES.
2. when the FL/JT/C, is contrary to as sound and
established PUBLIC POLICY of the forum.
3. when the FL/JT/C involves PROCEDURAL matters
(because NO VESTED RIGHT is acquired under
procedural law).
4. when the case involves PENAL LAWS, contracts,
judgments: PRINCIPLE OF TERRITORIALITY, supra.
5. when the case involves PURELY FISCAL (i.e.,
revenue-producing) or ADMINISTRATIVE MATTERS.
6. when the case involves real or personal property
situated in the forum: LEX SITUS.
7. when the application of the FL/JT/C may work
undeniable INJUSTICE to the citizen/resident/s of the
forum
8. when the application of the FL/JT/C may work against
the VITAL INTERESTS & NATIONAL SECURITY of
the state of the forum.
THEORIES on why the foreign law may be given effect

1. THEORY OF COMITY: Recognition which a nation allows
within its territory, to the legislative, executive or judicial
acts of another nation, having due regard to both international
duty and convenience, and to the rights of its citizens, of other
persons under its protection.
 Two kinds of comity:
a. Comity based on Reciprocity;
 Reciprocity principle—Hilton vs. Guyot: if the laws
and judgment of the forum are recognised in a
foreign state, the forum, in turn, will recognise the
laws & judgments emanating from the said foreign
state. Black’s: the mutual concession of
 advantages or privileges for purposes of
commercial or diplomatic relations.
b. Comity based on persuasiveness of the foreign
judgment
 contract”, while lex loci contracus means “law of the
2. THEORY OF VESTED RIGHTS: To ENFORCE NOT THE
FL or FOREIGN JUDGMENT ITSELF but SIMPLY the
VESTED RIGHTS that have been VESTED UNDER SUCH FL
or JUDGMENT.

 3. THEORY OF LOCAL LAW: To apply FL, NOT BECAUSE
IT IS FOREIGN, but because OUR OWN RULES by
applying similar rules REQUIRE US TO DO SO, hence it is
AS IF THE FL HAS BECOME PART & PARCEL of our OWN
LOCAL LAW.
  Although Art 17 says it’s lex loci celebrationis (see
4. THEORY OF HARMONY OF LAW: To apply the FL so that
WHEREVER A CASE IS DECIDED, that is, IRRESPECTIVE
OF THE FORUM, the SOLUTION SHOULD BE
APPROXIMATELY THE SAME, as such, IDENTICAL or
SIMILAR PROBLEMS must have IDENTICAL or SIMILAR
SOLUTIONS somewhere.
5. THEORY OF JUSTICE: The PURPOSE OF ALL LAWS is
the DISPENSATION OF JUSTICE, if this can be attained by
APPLYING the PROPER FL, then we MUST DO SO.
——————————————
Key ideas on Characterization and Lex Contractus
1. Definitions:
 discussed extensively under Art. 16 NCC, supra.
a. Characterization or Qualification or Interpretation [Bar
1994]: the PROCESS of ASSIGNING a DISPUTED
QUESTION to its CORRECT LEGAL CATEGORY; a
PROCESS of DETERMINING under what CATEGORY
a certain SET OF FACTS or RULES FALL (Paras).
b. LEX (LOCI?) CONTRACTUS: Law of the CONTRACT:
law which governs the INTRINSIC VALIDITY of a
contract. [NB: lex contractus means “law of the
PLACE of the contract”]
c. Lex loci celebrationis, on the other hand, is the law
which governs the EXTRINSIC (formal) validity of the
contract. It is Latin for “law of the place of the
celebration”.

 2. For extrinsic validity of contracts, determine:
a. The agreement of the parties (lex voluntatis)
b. In the absence of an agreement, the lex loci
celebrationis [Art. 17];
discussions infra)
3. For intrinsic validity:
a. The agreement of the parties (lex voluntatis)
b. In the absence of an agreement, identify their intent
(lex intentionis)

4. For Real & Personal property: follow the law of the place
where they are situated (lex rei sitae; Art 16). However the
following always follow the national law of the parties:
a. Order of succession (Art 16, par 2)

b. Amount of successional rights (Art 16, par 2)

c. Intrinsic validity of testamentary provisions (Art 16, par
2)
d. Capacity to to succeed (Art 1039)
 *NB: this was
5. One has to spot the question accurately to give the right
answer:
 a. if it’s a Question of VALIDITY (i.e., elements of the
contract): the place WHERE THE CONTRACT WAS
MADE, unless the parties stipulated another;
b. if it’s Breach of PERFORMANCE: law of the place of
performance;
c. if it’s Breach of PAYMENT (failure to pay) place of
PAYMENT or CONSIDERATION. This is called LEX
SITUS (law of the place).
——————————————
Other Conflicts of Law concepts asked in the Bar
Borrowing statute [Bar 2013]:

1. Laws of the state on jurisdiction used by another state in
deciding conflicts question involved in the choice of law. It
directs the state of the forum to apply the foreign statute
of limitations to the pending claims based on the foreign law
& has the practical effect of treating the foreign statute of
limitations as one of substance.
 It bars the filing of a suit in the forum if it is
already barred by the statute of limitations in the
place where the cause of action arose. Thus,
when the country has a borrowing statute, the
characterisation of a statute into a procedural or
substantive law becomes irrelevant.
 1. Test to determine the state which has the most
2. Black’s definition: a legislative exception to the conflict-of-
iaws rule holding that a forum state must apply its own
statute of limitations.
 b. in the absence of
3. a borrowing statute specifies the circumstances in which
a forum state will apply another state's statute of limitations.
Cognovit
1. Latin "the person (he) has conceded (a debt or an action)"
a. 
 also: cognovit actionem: latin "he has confessed
the action”; an acknowledgment of debt or liability in
the form of a confessed judgment.
b. 
 a defendant's written acknowledgment of the
plaintiff's claim, authorizing the plaintiff to take a
judgment for a named sum (a confessed judgment)
2. cognovit clause. (1925) a contractual provision by which
a debtor agrees to jurisdiction in certain courts, waives notice
requirements, and authorizes the entry of an adverse
judgment in the event of a default or breach; cognovit clauses
are outlawed or restricted in most states.
Long arm statute


1. Black’s: a statute providing for (maintenance of)
jurisdiction over a non- resident defendant who has had
contacts with the territory where the statute is in effect.

2. Most state long-arm statutes extend this jurisdiction to its
constitutional limits.
Most significant relationship test or Most-significant-
contacts test

significant relationship in the case. The following factual
contacts are considered for the said determination:
a. the law chosen by the parties.
a) the law of the:
i. place of contracting

ii. place of negotiation of the contract
iii. place of performance
 c. or the domicile, residence, nationality, place of
incorporation and the business of the parties.

2. Black: the doctrine that, to determine the state law to apply

to a dispute, the court should determine which state has the
most substantial connection to the occurrence and the
parties.
 eg: in a tort case, the court should consider where
the injury occurred, where the conduct that
caused the injury occurred, the residence, place
of business, or place of incorporation of the
parties, and the place where the relation between
the parties, if any, is centered.