Conflict Ateneo Doc

8/8/2019 Conflict Ateneo Doc

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ATENEO CENTRALBAROPERATIONS 2007

Civil LawSUMMER REVIEWER

Adviser: Dean Cynthia del Castillo Head: JoyPonsaran, Eleanor Mateo; Understudy: Joy Tajan,

John Paul Lim;Subject Head: Laarni Pichay;

CONFLICT OF LAWSCHAPTER 1: GENERAL PROVISIONSPRIVATE INTERNATIONAL LAW That part of the law of each State or nationwhichdetermines whether, in dealing with a legalsituation, the law or some other State or nationwill be recognized, given effect, or applied (16

Am Jur, 2d, Conflict of Laws, 1). That part of municipal law of a State whichdirects its courts and administrative agencies,

when confronted with a legal problem involving aforeign element, whether or not they shouldapplya foreign law/s (Paras).NOTE:A factual situation that cuts acrossterritorial lines and is affected by diverse laws oftwo or more States is said to contain a foreignelement.FUNCTIONS OF CONFLICT OF LAW RULES1. To proscribe the conditions under which acourtor agency is competent to entertain a suit orproceeding involving facts containing a foreign

element;2. To determine the extent, validity andenforceability of foreign judgment3. To determine for each class of cases theparticular system if law by reference to which therights of the parties must be ascertainedDISTINGUISHED FROM PUBLICINTERNATIONALLAWBASIS CONFLICT OFLA

BASIS CONFLICTOF LAW

LAW OFNATIONS

Nature

Municipal incharacter Internationalincharacter

Personsinvolved

Dealt with byprivateindividuals;governsindividuals intheir private

Dealt with byprivateindividuals;governsindividuals intheir private

transactionswhich involvea foreignelement

transactionswhich involvea foreignelement

Transactionsinvolved

Privatetransactionsbetweenprivateindividuals

Generallyaffectedby publicinterest;those ingeneralare of interestonlyto sovereignStates

RemediesandSanctions

Resort tomunicipaltribunals

May bepeacefulor forciblePeaceful:

includesdiplomaticnegotiation,tender& exercise ofgoodoffices,mediation,inquiry &conciliation,arbitration,

judicialsettlement by

ICJ,reference toregionalagenciesForcible:includesseverance ofdiplomaticrelations,retorsions,reprisals,embargo,boycott,non-intercourse,pacificblockades,collectivemeasuresunderthe UNCharter,and war.


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

Custom,Treatyand GeneralPrinciples oflaw,recognized bycivilizednationsand juridicaldecisions andteachings ofthemost highlyqualifiedpublicists

W

LAW OF NATSOURCES OF CONFLICT OF LAWS

Direct IndirectConstitutions Natural Moral LawCodifications Work of WritersSpecial LawsInternational CustomsQuickTime and aTIFF (Uncompressed) decompressorare needed to see this picture.

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Treatises andInternationalConventions

Judicial DecisionsDEFINITION OF TERMS:1. Lex Domicilii- law of the domicile; inconflicts,the law of one's domicile applied in the choice oflaw questions.2. Lex Fori - law of the forum; that is, thepositivelaw of the State, country or jurisdiction of whose

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

place of the forum (lex fori)3. Lex Loci - law of the place4. Lex Loci Contractus - the law of the placewhere the contract was made or law of the placewhere the contract is to be governed (place ofperformance) which may or may not be thesameas that of the place where it was made5. Lex Loci Rei Sitae - law of the place wherethe

thing or subject matter is situated; the title torealty or question of real estate law can beaffected only by the law of the place where it issituated6. Lex Situs - law of the place where property issituated; the general rule is that real property isgoverned by the law of the State where it issituated7. Lex Loci Actus - law of the place where theactwas done8. Lex Loci Celebrationis - law of the placewherethe contract is made9. Lex Loci Solutionis - law of the place ofsolution; the law of the place where payment orperformance of a contract is to be made10. Lex Loci Delicti Comissi - law of the placewhere the crime took place11. Lex Mercatoria - law merchant/commercial

law;system of laws adopted by all commercialnationsand constitute as part of the law of the land; partof common law12. Lex Non Scripta - the unwritten commonlaw,which includes general and particular customsand particular local law13. Lex Patriae - national law14. Depecage where different aspects of acaseinvolving a foreign element may be governed by

different systems of law15.Renvoi Doctrine - doctrine whereby a juralmatter is presented which the conflict of lawsrules of the forum refer to a foreign law which inturn, refers the matter back to the law of theforum or a third State. When reference is madeback to the law of the forum, this is said to beremission, while reference to a third State iscalled transmission.16. Double Renvoi occurs when the localcourt, inadopting the foreign court theory, discovers thatthe foreign court accepts the renvoi; ultimately

then, it is the foreign internal law that will beused17. Desistment mutual disclaimer of

jurisdiction18. Foreign Court Theory the local forum, indeciding the case, will put itself in the position ofthe foreign court, and whatever the foreign courtwill do respecting the case, the local forum willlikewise do


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19. Nationality Theory -by virtue of which thestatusand capacity of an individual are generallygoverned by the law of his nationality. This isprincipally adopted in the RP.20. Domiciliary Theory - in general, the status,condition, rights, obligations, & capacity of aperson should be governed by the law of hisdomicile.21. Long Arm Statutes - statutes allowing thecourtsto exercise jurisdiction when there are minimumcontacts between the non-resident defendantand the forum.CHAPTER 2: JURISDICTION

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

JURISDICTION OVER THE PERSONQuickTime and a

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1. Jurisdiction over the person of the plaintiffisacquired from the moment he invokes the aid ofthe court and voluntarily submits himself byinstitution of the suit through proper pleadings2. Jurisdiction over the person of the defendantisacquired through:a. Voluntary appearance orb. Personal or Substituted service of summonsJURISDICTION OVER PROPERTY Results either from seizure of the propertyundera legal process or from the institution of legalproceedings wherein the courts power over theproperty is recognized and made effective. This kind of jurisdiction of jurisdiction isreferredto as in remjurisdiction. Another form of

jurisdiction is quasi in rem which affects only theinterests of particular persons in the thing.NOTE: Summons by publication is authorizedinthree cases:1. If the action is in rem2. quasi in rem3. Involves the personal status of the plaintiffMINIMUM CONTACTS TEST ANDFUNDAMENTALFAIRNESS TEST

Due process requires only that in order tosubjecta defendant to a judgment in personam, if he isnot present within the territory of the forum heshould have certain minimum contacts with itsuch that the maintenance of the suit does notoffend traditional notions fair play andsubstantial

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

Statutes which specify the kinds of contactswhich jurisdiction will be asserted over adefendant outside of state territory.JURISDICTION OVER THE SUBJECTMATTER Jurisdiction over the subject matter is conferredby lawCHAPTER 3: WAYS OF DISPOSINGCONFLICTSCASES1. DISMISS THE CASE FOR LACK OFJURISDICTION2. DISMISS THE CASE ON THE GROUND OFFORUMNON-CONVENIENS.DOCTRINE OF FORUM NON-CONVENIENS

A forum may resist imposition upon itsjurisdictioneven when jurisdiction is authorized by law on

theground that the forum is inconvenient or theendsof justice would be best served by trial inanotherforum or the controversy may be more suitablytried elsewhereELEMENTSa. The forum State is one to which the partiesmay conveniently resort to;b. It is in a position to make an intelligentdecision as to the law and the facts; andc. It has or is likely to have power to enforce its

decision.3. ASSUME JURISDICTION AND APPLY THEFORUM LAWINSTANCES WHEN INTERNAL LAW SHOULDBEAPPLIED:a.A specific law of the forum decrees thatinternallaw should applyEXAMPLES:


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i. Article. 16 of the Civil Code - real andpersonal property subject to the law of thecountry where they are situated andtestamentary succession governed by lexnationaliiii. Article 829 of the Civil Code - makesrevocation done outside Philippines validaccording to law of the place where will wasmade or lex domiciliiiii. Article 819 of the Civil Code - prohibitsFilipinos from making joint wills even if validin foreign countryb. The proper foreign law was not properlypleadedand provedNOTE:As a general rule, courts do not take

judicial notice of foreign laws; foreign laws mustbe pleaded and proved The following actions may be resorted in caseofQuickTime and aTIFF (Uncompressed) decompressorare needed to see this picture.


failure to prove and plead the proper foreign law:i. Dismiss the case for inability to establishcause of actionii. Assume that the foreign law of the same asthe law of the forum (processualpresumption)iii. Apply the law of the forum3. The case falls under any of the exceptions totheapplication of foreign law.EXCEPTIONS:a. The foreign law is contrary to the publicpolicy of the forumb. The foreign law is procedural in naturec. The case involves issues related to property,real or personal (lex situs)d. The issue involved in the enforcement offoreign claim is fiscal or administrativee. The foreign law or judgment is contrary togood morals (contra bonos mores)f. The foreign law is penal in character

g. When application of the foreign law may workundeniable injustice to the citizens of theforumh. When application of the foreign law mightendanger the vital interest of the State4. ASSUME JURISDICTION AND APPLYFOREIGN LAW As a general rule, no rule of PrivateInternational

Law would be violated if the courts shoulddecideto dispose of cases, according to the internal lawof the forumEXCEPT: Where a foreign, sovereign,diplomaticofficial, or public vessel or property of anotherstate is involved, or where a state has by treaty,accepted limitations upon its jurisdiction overcertain persons or things.THEORIES WHY FOREIGN LAW SHOULD BEGIVEN EFFECT:1. Theory of Comity foreign law is appliedbecause of its convenience & because we wantto giveprotection to our citizens, residents, &transients in our land2. Theory of Vested Rights we seek toenforcenot foreign law itself but the rights that havebeen

vested under such foreign law; an act done inanother State may give rise to the existence of aright if the laws of that State crated such right.3. Theory of Local Law- we apply foreign lawnotbecause it is foreign, but because our laws, byapplying similar rules, require us to do so;hence,it is as if the foreign law has become part &parcel of our local law4. Theory of Harmony of Laws we have toapplythe foreign laws so that wherever a case is

decided, that is, irrespective of the forum, thesolution should be approximately the same;thus,identical or similar solutions anywhere &everywhere. When the goal is realized, there willbe harmony of laws5. Theory of Justice the purpose of all laws,including Conflict of Laws, is the dispensing of

justice; if this can be attained in many casesapplying the proper foreign law, we must do so.CHAPTER 4: RECOGNITION ANDENFORCEMENT OF FOREIGN JUDGMENTS A foreign judgment is recognized when it is

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


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to being recognized, a party is given affirmativerelief to which the judgment entitles him. When aplaintiff asks the court of one state to carry outand make effective a judgment obtained by himin another state, what is involved is theenforcement of a foreign judgment.REQUISITES FOR RECOGNITION ANDENFORCEMENT OF FOREIGN JUDGMENTS1. Foreign judgment was rendered by a judicialor aquasi-judicial tribunal which had competent

jurisdiction over the parties and the case in theproper judicial proceedings in which thedefendant shall have be given reasonablenotice and the opportunity to be heard.2. It must be a judgment on civil andcommercialmatters.3. The judgment must be valid according to thecourt that delivered it;

4. Judgment must be final and executory toconstitute res judicata in another action;ELEMENTS: The judgment must bea. Finalb. Rendered by a competent courtc. On the Meritsd. Involve the same parties, subject matter andcause of action.5. Foreign judgment must not be contrary to thepublic policy or the good morals of the StateQuickTime and assor.

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where it is to be enforced; and6. Judgment must not have been obtained byfraud,collusion, mistake of fact ormistake of law.7. The foreign judgment must not be barred byprescription under the law of the State in which itwas promulgated or under the law of the State inwhich its recognition/enforcement is sought.DISTINCTION BETWEEN RECOGNITION ANDENFORCEMENT

PROOF OF FOREIGN LAWS1. Written Lawa. By written publicationb. Copy attested to by the officer havingcustody accompanied with a certificate thatsuch officer has the custody and sealed bythe appropriate public officer (section 24 rule132 of the Revised Rules of Court)2. Unwritten Law

By the oral testimony of expert witnesses orwritings of juristsEFFECTS OF FOREIGN JUDGMENTS

Under the Rules of Court, in case of ajudgmentagainst a specific thing, the judgment isconclusive upon the title of the thing. In case of a judgment against a person, the

judgment is presumptive evidence of a right asbetween the parties and their successors-ininterestby a subsequent title; but the judgmentmay be repelled by evidence of want of

jurisdiction, want of notice to the party, collusion,or clear mistake of law or fact.CHAPTER 5: CHARACTERIZATION

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

STAGES IN CHARACTERIZATION:1. Determination of the factual situation2. Characterization of the factual situation3. Determination of the applicable Conflicts rule4. Characterization of the Point of Contact or theConnecting Factor5. Determination between procedural andsubstantial matter6. Pleading and Proving of the proper lawSTATUTE OF FRAUDS

1. Substantive If the words of the law relate toforbidding the obligation2. Procedural If the law forbids the

enforcementof the obligationSTATUTE OF LIMITATIONS1. Substantive When the limitation wasdirectedto the newly created liability specifically towarrant a qualification of the right2. Procedural If it operates to bar the legalremedy without impairing the substantive rightinvolved.NOTE: Borrowing statutes direct the state oftheforum to apply the foreign statute of limitations to

the pending claim based on a foreign law (treatsthe statute of limitations as a substantive law)DEPECAGE

The phenomenon where the different aspectsofthe case involving a foreign element may begoverned by different systems of laws.TESTS OR FACTORS TO DETERMINEPOINTS OFCONTACT:


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Circumstances which may serve as thepossibletest for the determination of applicable law:RECOGNITION OFFOREIGN JUDGMENTENFORCEMENT OFFOREIGN JUDGMENTCourts will allow theforeign judgment tobe presented as adefense to a locallitigationPlaintiff wants courts topositively carry out andmake effective in theState a foreign

judgmentInvolves merely thesense of justiceVirtually implies a direct

act of sovereigntyDoes not requireeither an action or aspecial proceedingNecessitates aseparate action orproceeding broughtprecisely to make theforeign judgmenteffectiveMay exist withoutenforcementNecessarily carries with

it recognitionForBOTH recognition and enforcement, proofof the foreign judgment has to be presented.Moreover, the requisites or conditions for therecognition or enforcement of foreign judgmentsmust be present.QuickTime and aTIFF (Uncompressed) decompressorare needed to see this picture.

Civil Law Summer ReviewerATENEOCENTRALBAROPERATIONS 2007Page 256 of 2971. The nationality of a person, his domicile,residence, his place of sojourn, or his origin.

2. The seat of legal or juridical person3. Lex Situs4. Locus Actus5. The place where the act is intended to takeeffect, the place of performance of contractualduties, or the place where the power of attorneyis to be exercised6. Lex loci intentionis7. Lex fori applies to procedural matters and

whenever the content of the otherwiseapplicableforeign law is excluded from application in agivem case for the reason that it fails under oneof the exceptions to the application of foreignlaw.8. The flag of the ship, which in many cases isdecisive of practically all legal relationships oftheship and of its master or owner as such.CHAPTER 6: PERSONAL LAWS The law which governs a persons familyrelations, capacity or status. Three most common personal laws are theNationality Rule, Domiciliary Rule, EclecticTheoryNATIONALITY LAW THEORY

The Philippines adheres to the nationality lawtheory.PROBLEMS IN APPLYING THE

NATIONALITYPRINCIPLE1. MULTIPLE CITIZENSHIP In matters of status, he is usually consideredbythe forum as exclusively his own national, hisadditional foreign nationality is disregarded In case the litigation arises in a third country,thelaw most consistently applied is that of thecountry of which the person is not only anationalbut where he has his domicile or habitual

residence, or in the absence thereof, hisresidence.NOTE:Article 5 of the Hague Convention ontheConflict of Nationality laws provides: a thirdstate shall, of the nationalities which suchpersonpossesses, recognize exclusively in its territoryeither the nationality of the country of which heishabitually and principally resident, or thenationality of the country with which in thecircumstances he appears to be closely

connected.MULTIPLE CITIZENSHIP ARISES DUE TO:a. Through a Naturalized Citizens Failure toComply with Certain Legal Requirements inthe country of originb. From a combined application ofJus SoliandJus Sanguinis principlec. By the legislative Act of Statesd. By the voluntary Act of Individual concerned2. STATELESSNESS


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Stateless persons are generally subject to thelaw of theirdomicileor habitual residence, or indefault thereof, to the law of theirtemporaryresidence.STATELESSNESS ARISES DUE TO:a. Deprivation of his citizenship for any cause,such as commission of a crimeb. Renunciation of ones nationality by certainacts, express or implied;c. Voluntary release from his original state;d. If born in a country which recognizes only theprinciple of jus sanguinis of parents whoselaw recognizes only the principle of jus soliNOTE: The Convention on the Adoption on theReduction of Statelessness (1961) mandatesthatthe jus sanguini country grants its nationality toperson born within its territory if he would beotherwise stateless, and the jus soli country toextend its nationality to a person who would

otherwise be considered stateless when of hisparents is a citizen of the contracting state.Art. 15. Laws relating to family rights and duties,or to the status, condition and legal capacity of

persons are binding upon citizens of thePhilippines, even though living abroad.DOMICILIARY THEORY

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

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

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

2. It is assigned to him by law AFTER BIRTH onaccount of legal disability caused for instance byminority, insanity or marriage in the case of awoman (constructive domicileordomicile byoperation of law)3. he has a HOME there that to whichwheneverQuickTime and aTIFF (Uncompressed) decompressorare needed to see this picture.

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ATENEOCENTRALBAROPERATIONS 2007Page 257 of 297he is absent, he intends to return (domicile ofchoice)NOTE: The forum determines domicileaccordingto his own standardsGENERAL RULES ON DOMICILE:

1. No natural person must ever be without a

domicile2. No person can have two or more domiciles atthesame time, except for certain purposes, andfromdifferent legal viewpoints3. Every sui juris may change his domicile4. Once acquired, it remains the domicile unlessanew one is obtained:a. By capacitated personsb. With freedom of choicec. With actual physical presenced. And Provable intent that it should be onesfixed and permanent place of abode, thereshould be animus manendi (intent to remain)or animus nonrevertendi (intent not to return)5. The presumption is in favor of thecontinuance ofdomicile. The burden of Proof is on the one who

alleges that a change of domicile has takenplace.SITUS OR ECLECTIC THEORY

The capacity, legal condition, or status of anindividual should be governed by the law of theplace where an important element of theproblemoccurs or is situated.CHAPTER 7: RENVOI

A procedure whereby a legal matter is referredbythe conflict of laws rules of the forum to a foreignstate, the conflict of laws rule of which, in turn

refers the matter back to the law of the forum(remission) or a third state (transmission).SOLUTIONS TO THE RENVOI1. Reject the renvoi

If the conflicts rules of the forum refer the casetothe law of another state, it is deemed to meanonly the internal law of that state. Thus, the courtwill apply the foreign law.2. Accept the renvoi If the conflict rules of the forum refer the casetothe law of another state, it is deemed to include

the totality of the foreign law (internal law andconflicts of laws rule). Thus, the court willrecognize the referral back and apply local law.3. Desistment theory

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


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This has the same result as the acceptance ofthe renvoibut the process used by the forumcourt is to desist applying the foreign law.4. Foreign Court Theory

Foreign court assumes the same position thattheforeign court would take if the case is litigated inthe foreign state. Hence:a. If the foreign court would accept the renvoi,the local court shall apply the foreign law.b. If the foreign court would reject the renvoi,the local court shall apply lex fori.c. If the foreign court would apply thedesistment theory, the local court shall applyVellila v. Posadas abandonment of ones theforeign law.domicile required deliberate and provable choiceof a new domicile, coupled with actual residencein the place chosen, with a declared or provableintent that it should be ones fixed and

permanentplace of aboded. If the foreign court would use the foreigncourt theory, then international pingpongwould ensue.DOUBLE RENVOI THEORY

Occurs when the local court, in adopting theforeign court theory, discovers that the foreigncourt accepts the renvoi.TRANSMISSION

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

Testate Estate of Amos G. Bellis The renvoidoctrine does not apply when the referredforeignlaw does not have a conflict of law rule on thesame subject matter. The referral to the foreignlaw shall immediately pertain to the internal lawsof the foreign state.CHAPTER 8: RULES ON STATUS Status, is the place of an individual in a societyand consists of personal qualities andrelationships, more or less permanent, withwhichthe state and the community are concerned.QuickTime and a

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Civil Law Summer ReviewerATENEOCENTRALBAROPERATIONS 2007Page 258 of 297FACTUALSITUATIONPOINT OF CONTACT(1) beginning of

personality naturalpersons(1) national law of thechild(Article 15, Civil Code)(2) ways and effects ofemancipation(2) national law (Art.15)(3) age of majority (3) national law (Art.15)(4) use of names andsurnames(4) national law (Art.15)(5) use of titles ofnobility(5) national law (Art.15)(6) absence (6) national law (Art.15)(7) presumptions ofdeath and survivorship(7) lex fori(Arts. 43,390, 391, Civil Code;

Rule 131, Sec.5(jj),Rules of Court)CHARACTERISTICS OF STATUS1. Status is conferred principally by the state notbythe individual.2. Status is a matter or public or social interest.3. Status being a concept of social order, cannoteasily be terminated at the mere will or desire ofthe parties concerned.4. Status is generally supposed to have auniversalcharacter: when a certain status is created by

lawof one country, it is GENERALLY judiciallyrecognized all over the world.CHAPTER 9: RULES ON MARRIAGEMARRIAGE AS A CONTRACT

Marriage as a contract has two kinds ofrequisites:1. Formal generally do NOT affect the validityofthe marriage. Art 3 of the Family Codeprovidesfor three formal requisites namely:a. authority of the solemnizing officer

b. marriage licensec. marriage ceremony where the contractingparties appear before the solemnizing officer.2.Essential affects the validity of themarriage;Art 2 of the Family Code prescribes twoessential requisites to marriage:a. legal capacity of the contracting parties whomust be male and femaleb. consent freely given in the presence of a


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solemnizing officer.THEORIES ON THE FORMAL REQUISITESOFMARRIAGE1. Compulsory theory It is imperative for theparties to follow the formalities of the place ofcelebration. (this is followed in the Philippines)2. Optional theory parties may follow eitherthelex loci celebrationis or their national law. Thisruleis followed in most countries.3. Ecclesiastical rule the formalities of boththelex loci celebrationis and the national law of theparties must be complied with.FACTUALSITUATIONPOINT OF CONTACTBetween

FilipinosG.R.Lex locicelebrationisExceptions:(1) Arts. 26, 35 (1),(4), (5) and (6), 36,37 and 38 of theFamily Code(bigamous,polygamous andincestuousmarriages)2) consular marriages

BetweenForeignersG.R. Lex locicelebrationisExceptions :(1) highly immoral(like bigamousand polygamousmarriages)(2) UNIVERSALLYconsideredINCESTUOUS,i.e., between

brothers-sistersand betweenascendantsdescendantsCelebratedabroadMixed Apply rule onmarriages betweenforeigners to upholdthe validity of themarriage

BetweenForeignersNational law (Art.21,Family Code) providedthe marriage is nothighly immoral oruniversally consideredincestuousCelebratedin thePhils.Mixed National law of theFilipino (otherwisepublic policy may bemilitated against)Marriageby Proxy(NOTE: aLex loci celebrationis(with prejudice with

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marriage byproxy isconsideredcelebratedwhere theproxyappears)RULES GOVERNING EXTRINSIC VALIDITYGENERAL RULE: lex loci celebrationis1.All states recognize as valid those marriagescelebrated in foreign countries if they complywiththe formalities prescribed therein (HagueConvention)2.The forms and solemnities of contracts, willsandother public instruments shall be governed bythelaws of the country in which they were executed(Article 17, Civil Code)

3.All marriages solemnized outside thePhilippinesin accordance with the laws in force in thecountry where they were solemnized and validthere as such shall also be valid in this country(Article 26, Family Code)EXCEPTIONS:The following are voidmarriagesbetween Filipinos even if valid in the foreign


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country where celebrated or in case ofmixedmarriages celebrated in the Philippines:a. When either or both parties are below 18years of age even with parental consent;b. Bigamous and polygamous marriages;c. Mistake as to identity of a contracting party;d. A subsequent marriage performed withoutrecording in the Civil Registry the judgmentof annulment or declaration of nullity,partition and distribution of properties and thedelivery of childrens presumptive legitimes;e. Marriages where either spouse ispsychologically incapacitated;f. Incestuous marriages; andg. Void marriages by reason of public policy.NOTE: These exceptions put into issue thecapacity of the parties to enter into the marriageand therefore relate to the substantiverequirement for marriage. Since the personallaw

of the parties, e.g., the national law of Filipinos,governs the questions of intrinsic validity ofmarriages between the Filipinos abroad, theabove enumerations are exceptions to lex locicelebrationisprecisely because they arecontrolled by lex nationalii.INTRINSIC VALIDITY controlled by theparties

personal laws (either domiciliary or nationality)MARRIAGE AS A STATUS

Marriage as a status carries with it implicationsintwo fields:

1. Personal rights and obligations of thespouses personal affair between husbandandwife and will not ordinarily be interfered with thecourts of justice. Includes mutual fidelity,cohabitation, respect, assistance and support;right of wife to use husbands name; duty tofollow husbands residence.GOVERNING LAW - National law of thehusband. Subsequent change on the nationalityof the spouses are proposed to have thefollowing effects:a. if both will have a common nationality the

new oneb. if only one will change the last commonnationalityc.if there never was any common nationality the national law of the husband at the time ofthe wedding (Hague Convention)2. Property RelationsGOVERNING LAW in the absence of acontrary stipulation in the marriage settlement,national law of the husband regardless of the

place of celebration of the marriage and theirresidence. However, this rule shall not apply:a. where both spouses are aliens;b. with respect to the extrinsic validity ofcontracts affecting property not situated inthe Philippines and executed in the countrywhere the property is located; andc. with respect to the extrinsic validity ofcontracts entered into in the Philippines notaffecting property situated in a foreigncountry whose laws require differentformalities for their extrinsic validity. (Art. 80,Family Code)NOTE: The subsequent change of thenationalityof the husband or the wife has no effect on thespouses original property regime EXCEPTwhenthe law of the original nationality itself changesthe marital regime, in which case the property

relations should change accordingly. This is thedoctrine ofIMMUTABILITY IN THEMATRIMONIAL PROPERTY REGIME.Recto v. Harden, 100 Phil 427 Legislative

jurisdiction, aside from the authority to enactlaws, isthe competence of a persons national law togovernhis status.QuickTime and aTIFF (Uncompressed) decompressorare needed to see this picture.

Civil Law Summer ReviewerATENEOCENTRALBAROPERATIONS 2007Page 260 of 297CHAPTER 10: ANNULMENT/ DECLARATIONOFNULLITY/LEGAL SEPARATIONANULLMENT/DECLARATION OF NULLITY Grounds for annulment (if the marriage isvoidable merely) and grounds for declaration ofnullity (if the marriage is void ab initio) aregoverned by the law alleged to have beenviolated; in other words, it is the law of theplaceof celebration (lex loci celebrationis) subject tocertain exceptions, that furnishes the grounds.

1. Jurisdiction to annul in practically all civilcountries following the nationality principle,nationals of the forum are permitted to sue forannulment irrespective of their domicile. In manycountries today however, jurisdiction is vested inthe court of the domicile of the parties.Jurisdiction over the non-resident defendant isnot essential. It is the status of the plaintiff that isin issue. He should be domiciled in the forum.


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2. The governing law lex loci celebrationis (ofthemarriage) determines the consequences of anydefect to form. Generally, the same applies withreference to substantive or intrinsic validity. Butwith regard to capacityof theparties to marry,their national law is determinative.ABSOLUTE DIVORCEGENERAL RULE: our courts only observerelative divorce (legal separation). Any divorcesought in Philippine courts will not be granted.Filipino couples cannot obtain absolute divorcesabroad and neither shall a valid divorce obtainedabroad by Filipino couples be recognized here.EXCEPTIONS:1. Valid divorce obtained abroad betweenforeigners whose national laws allow divorce.2. Where a marriage between a Filipino citizenanda foreigner is validly celebrated and a divorce is

thereafter validly obtained abroad by the alienspouse capacitating him or her to remarry, theFilipino spouse shall have capacity to remarryunder Philippine law. Hague Convention provides that the granting ofdivorce or separation must comply with thenational law of the spousesand the law of the

place where the application for divorce is made.LEGAL SEPARATION There is no obstacle to aliens in securingrelativedivorce in the Philippines, provided:1. Their national law is willing to recognize

Philippine jurisdiction.2. Separation is agreeable to the internal law ofthenational state of the parties.NOTE: Grounds for Legal separation are thecumulative grounds provided by the national lawof the parties (lex nationalii).CHAPTER 11: LEGITIMACY, LEGITIMATION&ADOPTIONFACTUALSITUATIONPOINT OF CONTACT

1) Paternity andFiliation(includingParental Authorityand ReciprocalSupport) legitimacy,legitimation,recognition,presumptions of

legitimacy, rightsand obligations ofparents andchildren, includingparental authority,and reciprocalsupport.1) if legitimate national lawof the father(Art15, CivilCode)2) if illegitimate national lawof the mother unlessrecognized by the father inwhich case, national law ofthe father(Art15, CivilCode)3) determination of whetherlegitimate or illegitimate(national law of the father,as a rule) (Art.15, Civil

Code)Doctrine of ImmutabilityofStatuschange ofparents nationality doesnot affect the status of thechild2. Adoptioncreation of thestatus of adoption;rights andobligations ofadopter andadopted

2) in general, national law ofthe adopterNOTE: In the Philippines.adoption by a Filipino doesnot confer Filipino citizenshipon an adopted alien child.3. Guardianshipa) over the person1) appointing 1) court of the domicile of theIbanez, 29 Phil 606 - Both our citizens andaliensshould endeavor to have their rights establishedby

the tribunals of the State which have coercivemeansto enforce their decisions; otherwise a personrunsthe risk of incurring useless expenditures toobtain a

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court2) powers ofguardianb) over the

property1) appointingcourt2) powers ofguardianc) over the personand over thepropertyward2) coextensive with those ofthe appointing court (law ofthe appointing state)1) court where the property is

found (lex rei sitae)2) coextensive with those ofthe appointing court (law ofthe appointing state)c) see 3(a) and 3(b)4. Funerals Where the body is buried.GOVERNING LAW ON THE LEGITIMACY OFACHILD:

The legitimacy of the child is determined by thenational law of the parents. If the parents belongto different nationalities, legitimacy of the child isdetermined by the national law of the maleparent. NOTE: Presumptions of Legitimacy are notmere rules of evidence but are considered assubstantive law, hence governed as well by thenational law of the male parent.RIGHTS OF A LEGITIMATE CHILD:1. To bear the surname of the father and themother2. receive support from their parents, brothersandsisters, in proper cases;3. to the legitime and other successional rights.NOTE: The law governing the capacity tosucceed and the amount of successional rights

ofthe legitimate children are governed by thenational law of the decedent.LEGITIMATIONLAWS REGULATING RELATIONS BETWEENGOVERNING LAW: The National law of themaleparent at the time of the marriage shall govern:a. Whether legitimation has been effected

b. Whether or not the legitimation will haveretroactive effectc. Other connected mattersLAWS REGULATING RELATIONS BETWEENLEGITIMATE/D CHILDREN AND PARENTS

Personal law of the father controls the rightsandduties of parents and children.EXCEPT: parental interest in the immovableproperty of the child which may be regulated bythe lex situs.NOTE: Reference to the personal law of thefather may result in joint exercise of parentalauthority over the property of the child by fatherand mother(Art.221, Family Code).Fatherspersonal law could grant parental authority tothemother of the illegitimate children (Art.176,Family Code).NOTE: Change in the nationality of the male

parent affects the consequent relations betweenthe parents and child.RIGHTS AND OBLIGATIONS INVOLVEDUNDERPHILIPPINE LAWS INCLUDE:1. Personal Care2. Parental Authority3. Provide for Education4. Reciprocal SupportLAWS REGULATING RELATIONS BETWEENILLEGITIMATE CHILDREN

Relations between the mother and theillegitimate

child are governed by the mothers personal law. If the child is later legitimated, personal law ofthechild follows that of the father.RIGHTS OF AN ILLEGITIMATE CHILD

1. To use the surname of the mother2. To Support3. To LegitimeADOPTIONAdoption an act which renders a childlegitimatein relation to the adopting parents, to whom thechild

Legitimation is the act by which a person notborn may or may not be related.legitimate, is placed upon the same footing as alegitimate child.1. Jurisdiction to Grant Adoption ThePhilippineCourts shall have jurisdiction to grant petition foradoption but must apply the lex fori with respectto procedural matters.2. Capacity of Aliens to Adopt According to


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Salonga, the cumulative substantiverequirements of the forum and of the nationallawof the adopter must be complied with.QuickTime and aTIFF (Uncompressed) decompressorare needed to see this picture.

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3. Effects or Consequences of Adoption a. Successional rights governed by theConflict Rules on Succession.b. Parental Authority governed by the nationallaw of the adopter4. Recognition of a Decree on Adoption ThePhilippines recognizes the principle of foreignadoptions validly rendered and recognizedwhereeffected. However, such adoption is still subject

to municipal law i.e. the obligation to registersaidadoption in the civil registry. EXCEPTION, suchadoption shall not be recognized if it is contrarytopublic policy or residents interest forbids itsenforcement (Agpalo)CHAPTER 12: RULES ON PROPERTYRULES ON REAL PROPERTYGENERAL RULE - Lex rei sitae (Article 16,CC)EXCEPTIONS:1. Successional rights National law ofdecedent(Article 16 par. 2, CC)2. Capacity to succeed National law ofdecedent(Article. 1039)3. Contracts involving real property which donot deal with the title thereto - The lawintended will be the proper law of the contract(lex loci voluntantis orlex loci intentionis)TANGIBLE PERSONAL PROPERTYGENERAL RULE - Lex rei sitae (Article 16,CC)EXCEPTIONS: same as those for real propertyRULES GOVERNING DIFFERENT KIND OF

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

2. Acquisitions of title by operation of law(e.g.acquisition by prescription or adversepossession, validity and priority of attachments,levied of execution, statutory liens) governedbylex situs.TANGIBLE PERSONAL PROPERTY(CHOSES IN POSSESSION)FACTUAL SITUATION POINT OF CONTACTLaw of the flag (or in somecases, place of registry)Means ofTransportationVesselsOther means Law of the depot (storageplace for supplies orresting place)Law of the destination(Article. 1753, CC)

Locus regit actum (whereseized) because saidplace is their temporarysitusThings in transitu(these things have achanging statusbecause they move)Loss, destruction,deteriorationValidity & effect of theseizure of the goodsDisposition or alienage

of the goodsLex loci volutantis or lexloci intentionis becausehere there is a contractINTANGIBLE PERSONAL PROPERTYINTANGIBLE PERSONAL PROPERTY (CHOSES INACTION)FACTUAL SITUATION POINT OF CONTACTRecovery ofdebts orinvoluntaryassignment ofdebts

(garnishment)Where debtor may beeffectively served withsummons (usually thedomicile)Voluntaryassignment ofdebtsLex loci voluntatis orlexloci intentionis (proper law


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of the contract)Taxation of debts Domicile of creditorAdministration ofdebtsLex situs of assets of thedebtor (for these assetscan be held liable for thedebts)Negotiability ornon-negotiabilityof an instrumentThe right embodied in theinstrument (for example, inthe case of a Swedish billof exchange, Swedish lawdetermines itsnegotiability)Validity oftransfer, deliveryor negotiation of

the instrumentIn general, situs of theinstrument at the time oftransfer, delivery ornegotiationEffect on acorporation of theLaw of the placeincorporationQuickTime and aTIFF (Uncompressed) decompressorare needed to see this picture.

Civil Law Summer ReviewerATENEOCENTRALBAROPERATIONS 2007Page 263 of 297sale of corporatesharesEffect betweenthe parties of thesale of corporatesharesLex loci voluntatis or lexloci intentionis (proper lawof the contract) for this isreally a contract; usuallythis is the place where thecertificate is delivered)

Taxation on thedividends ofcorporate sharesLaw of the place ofincorporationTaxation on theincome from thesale of corporateshares

Law of the place where thesale was consummatedFranchises Law of the place thatgranted themGoodwill of thebusiness &taxation theretoLaw of the place where thebusiness is carried onPatents,copyrights,trademarks, tradenamesIn the absence of a treaty,they are protected only bythe State that grantedthemNOTE: foreigners may suefor infringement oftrademarks and trade

names in the RP ONLY IFFilipinos are grantedreciprocal concessions inthe State of the foreignersCHAPTER 13: WILLS, SUCCESSION &ADMINISTRATION OF CONFLICT RULESEXTRINSIC VALIDITY OF WILLS

Deals with the forms and solemnities in themaking of wills.GOVERNING LAWS1. If the Testator is a FILIPINOa. Executed in Philippines Philippine lawb. Executed in foreign country

i. Lex nationaliiii. Lex loci celebrationis (Article 817)2. If the Testator is an ALIENa. Executed in the Philippinesi. Lex nationaliiii. Lex loci celebrationis (Article 815)b. Executed abroadi. Lex nationaliiii. Lex domiciliiiii. RP law (Article 816, CC),iv. Lex loci celebrationis (Article 17(1))NOTE: Joint wills executed by Filipinoswhether

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


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It concerns itself with the order of succession,theamount of successional rights, and the intrinsicvalidity of the provisions of the will. It isgovernedby the national law of the person whose will isunder consideration in force at the time ofdeath.Capacity to succeed law of the nation of thedecedent (Art.1039, Civil Code)THEORIES ON THE PROPER LAW FOR THETRANSMISSION OF SUCCESSIONALRIGHTS1. Unitary or single system one law governsthetransmission of BOTH real and personalproperty.2. Split or scission system one law governsrealproperty while another determines successional

rights to personal property.Caduciary rights refer to the right of the statetoclaim thru escheat proceedings the propertieswithinits territory of a decedent when the decedent isnotsurvived by any heirs.REVOCATION OF WILLS1. Done in the Philippines - Lex loci actus (oftherevocation) (Article. 829)2. Done outside of the Philippines:

a. By a non-domiciliaryi. Lex loci celebrationis (of the making ofthe will, NOT revocation)ii. Lex domicilii (Article 829)b. By a domiciliary of the RPi. Lex domicilii (RP law)ii. Lex loci actus (of the revocation) (Article17)PROBATE OF WILLSQuickTime and aTIFF (Uncompressed) decompressorare needed to see this picture.

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Page 264 of 297 If the will is not yet probated abroad, Lex foriofthe RP applies as to the procedural aspects, i.e.,the will must be fully probated here and dueexecution must be shown. If the will is already probated abroad, lex foriofthe RP again applies as to the procedural

aspects. Although it has been probated abroad,the will must also be probated here, but insteadof proving due execution, generally it is enoughto ask for the enforcement here of the foreign

judgment on the probate abroad.EXECUTORS AND ADMINISTRATORS1. The executor is qualified, and theadministrator isappointed, by the Court of the place where thedeceased was domiciled at the time of death;orin the case of a non-domiciliary, where theassetsor properties of the deceased are found.2. Their rights, powers and obligations arecoextensivewith the qualifying of the appointingcourt powers may only be exercised within theterritorial jurisdiction of the court concerned.NOTE: these rules also apply to principal,

domiciliary, or ancillary administrators &receiverseven in non-successive casesCHAPTER 14: RULES ON CONTRACTSEXTRINSIC VALIDITY OF CONTRACTS Governed by lex loci celebrationisEXCEPTIONS:1. Alienation & encumbrance of property - Lexsitus(Article 16 [1])2. Consular contracts - Law of the RP (if made inRP consulates) The rule on validation especially becomes

significant in cases involving multi-statescontactsand there is difficulty determining where exactlythe contract has been celebrated.INTRINSIC VALIDITY OF CONTRACTS1. The intrinsic validity of contracts including theinterpretation of the instruments, and amount ofdamages for breach is governed by the properlaw of the contract lexcontractus(in thebroadsense), meaning the lexvoluntatisorlexlociintentionis.NOTE: The parties may stipulate that the

contract be governed by a specific law, such willbe recognized (lex loci intentionis) subject to thelimitation that it is not against the law, moralsandpublic policy of the forum and it must bear asubstantive relationship to the transaction.2. If there is no effective choice of law thegoverning the law of the State with the mostsubstantial connection with the transactionand


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the parties. The contacts to be taken into account indetermining the applicable law to an issue aretheff:a. Place of contractingb. Place of negotiationc. Place of Performanced. The location of the subject matter of thecontracte. The domicile, residence, nationality, place ofincorporation and place of business of theparties.VCEPI v. Philippine Gurantee ThePhilippineshas no express Conflict rules regarding theintrinsicvalidity of contracts. The SC held that in suchinstances, the party may apply the law expresslyagreed upon by the parties or the law intended

bythe parties to govern their transactions. The lexintentionis may be inferred from the nationality oftheparties, their residence, place of performance,etc. Inthis case, the parties did not agree upon onwhichlaw shall apply. Hence, the SC applied the lawwiththe most substantial connection to thetransaction.

Absent any proof of the law of the proper state,

theSC applied the doctrine of processualpresumption,Rule on Validation parties entering into acontract that such law is the same as the law ofthe forum.upon equal terms intended their agreement tobebinding, and the law will give effect on theirintentwhenever it can do so under any law whoseapplication the parties can be reasonably beassumed to have taken into account.

CAPACITY TO ENTER INTO CONTRACTSPHILIPPINE RULE: the capacity of thecontracting parties is governed by theirrespective national laws.EXCEPTION: In alienation and encumbranceofproperty, the capacity of the contracting partiesare governed by the lex situs (Art.16(1))

The doctrine of estoppel may be invoked incase

a party incapacitated to enter into a contractunder his national law later invokes such law toevade his obligations. PROVIDED: The otherparty entered the contract in good faith. The Courts must uphold the JustifiedQuickTime and aTIFF (Uncompressed) decompressorare needed to see this picture.

Civil Law Summer ReviewerATENEOCENTRALBAROPERATIONS 2007Page 265 of 297Expectations of the Party, especially in caseswhere the national laws of the parties areincidental or without substantial connection tothecontract.OTHER THEORIES ON CAPACITY1. Lex loci celebrationis (defect: this makespossible the evasion of the national law)2. Lex nationalii (defect: this may impede

commercial transactions)3. Lex loci solutionis (law of the place ofperformance) (defect: there may be severalplaces of performance4. Prof Minors solution: Perfection lex loci celebrationis Cause or consideration lex lociconsiderations Performance lex loci solutionis (defect: thistheory combines the defect of the others)CHOICE OF LAW ISSUES IN CONFLICTSCONTRACT CASES1. Choice of Forum Clause

Parties may stipulate on the venue of the suitincase of litigation concerning the contract.However, a case arising from a contract will belitigated in the forum chosen by the parties if thechoice of the forum clause specifically identifiesitas the only venue.

When there is no fraud or overreaching, andthere is no showing that the choice of forumclause would be unreasonable and unjust, theclause must be given effect.2. Contracts with Arbitration Clause

Many courts apply to arbitration agreements

thelaw of whatever place the parties havedesignated as governing, thus sustaining theiragreement to arbitrate.3. Adhesion Contracts When there is no proof of arbitrariness, abuseofpower, or gross negligence, the contract orstipulation will be enforced.


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4. Special Contracts (Please Refer to ConflictsTable 1)CHAPTER 14: TORTS

As a general rule, the liability and damages fortorts are governed by Lex loci delicti(law of theplace where the delict was committed)CHARACTERIZATION OF THE PLACE OFWRONG (locus delicti)1. Common law theory looks to the placewherethe last event necessary to make an actor liablefor an alleged tort occurs (where the injury issustained)2. Civil law theory view the situs of torts astheplace where the tortuous act was committed.OBLIGATION THEORY

The tortuous act gives rise to an obligation,whichis transitory and follows the person committing

the tortuous act and may be enforced whereverhe may be found.MODERN THEORIES IN TORT LIABILITY1. Doctrine of Elective Concurrence Eitherthelaws of the state where the actor engaged in hisconduct and where the injury was incurred maybe invoked.2. Theory of Most Significant RelationshipTheapplicable law shall be the law of the countrywhich has the most significant relationship to thesituation. In determining the state which has the

most significant relationship, the followingfactorsare to be taken into account:Pakistan International Airlines v. Ople TheSupreme Court held that where the relationshipbetween the parties is affected with publicinterestand the multiple and substantive contacts of thecontracts are with Philippine law, PhilippineCourtsand agency may not be ousted of their

jurisdiction.a. place where the injury occurred

b. place of conduct causing the injuryc. domicile, residence, nationality, place ofincorporation and place of businessd. place where relationship between the partiesis centered3. State-interest Analysis This principleprovidesfor the following methodology:a. Determine false or spurious conflicts (i.e.,internal laws of the different states have the

same result or when only one state has aninterest in applying its tort law.b. If there is True Conflict:i. If Interested Forum apply the law ofsuch State which has greater interest inupholding its tort law.ii. If Disinterested forum Dismiss on theground of Non Forum Conveniens.4. Cavers Principle of Preference guidelineonwhich rules on torts may be applied by States inabsence of statutory provision:QuickTime and aTIFF (Uncompressed) decompressorare needed to see this picture.


a. Where the State of Injury provides for higherstandard of conduct or financial protection

against injury than the State where thetortious act was done, the law of the formershall govern.b. Where the State of injury andconductprovides forlowerstandard of conduct andfinancial protection than the home State ofthe person suffering the injury, the law of theState of conduct and injury shall govern.c. Where the State in which the defendant hasacted has established special controls overconduct of the kind in which defendant wasengaged, the special controls and benefitsmust be applied although the State has norelationship to the defendant.d. Where the law in which the relationship hasits seat imposed higher standard of conductor financial protection than the law of theState of the injury, the former law shallgovern.CONDITIONS FOR THE ENFORCEMENT OFTORTCLAIMS The tort is not penal in character If the enforcement of the tortious liability wontcontravene our public policy If our judicial machinery is adequate for suchenforcement

PHILIPPINE RULE Salonga suggests for the followingmethodologyin solving Torts Problems in the Phils:a. Ascertain and weigh the purpose underlyingthe tort law of the forum. If the Tort law of thePhilippines embodies a social or economicpolicy, then the law of the forum on Tortsshall be applied.


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b. If the Philippines has no concern or interestin the application of the internal law and theother States have interest, apply the law ofsuch state.NOTE: the State where an injury has occurredhas interest in compensating the injured party.Whereas, the State where the actor has actedhas interest in regulating the conduct of personsfound in its territory.SPECIAL RULES1. If the tort is committed aboard a publicvessel,whether on the high seas or in foreign territorialwaters, the country to which the vessel belongsisthe locus delicti; the law of the flagis thus thelexloci delicti commissi.2. If the tort takes place aboard a privateormerchantvessel on the high seas , the law of

the flag is likewise the lex loci delicti commissi.3. If the tort concerns property, whether real orpersonal, the lex situs is usually also the lex locidelicti commissi.4. Maritime tortsa. if the colliding vessels are of the same state,orcarry the same flag, said law is the lex locidelicti commissib. if the vessels come from different states,whose laws however, on the matter areidentical, said laws constitute the lex loci delicticommissi.

c. if the vessels come from different states withdifferent laws, the lex loci delicti commissiisthe general maritime law as understood andapplied by the forum where the case is tried.Le Forest v. Tolman In order to successfullymaintain an action of tort, the act which is thecause of the injury and the foundation of theaction must at least be actionable orpunishable by the law of the place in which itwas done, if not also by the law of the placehere redress is so ghtCHAPTER IV: CRIMESGENERAL RULE: The essential elements of a

crime and its penalties are generally determinedby the law where the crime was committed(locusregit actum).EXCEPTIONS:1. crimes committed by state officials, diplomaticrepresentatives and officials of recognizedinternational organizations (based on the theoryof state immunity from suits)

2. crimes committed on board a foreign vesselevenif within the territorial waters of the coastal state,as long as the effect of such crime does notaffect the peace and order of the coastal state3. crimes which, although committed byPhilippinenationals abroad are punishable under the locallaw pursuant to theprotective principle ofcriminal

jurisdiction (ie.e.Art2of the RPC)THEORIES AS TO WHAT COURT HASJURISDICTION1. Territoriality theory where the crime wascommitted2. Nationality theory country which thecriminalQuickTime and aTIFF (Uncompressed) decompressor


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is citizen or a subject3. Real theory any State whose penal codehasbeen violated has jurisdiction, where the crimewas committed inside or outside its territory4. Protective theory any State whose nationalinterests may be jeopardized has jurisdiction sothat it may protect itself5. Cosmopolitan or universality theoryStatewhere the criminal is found or which has hiscustody has jurisdiction6. Passive personality theory the State ofwhichthe victim is a citizen or subject has jurisdiction NOTE: In the Philippines, we follow theterritoriality theory in general. Hence, our penallaws apply only to crimes committed within thecountry. EXCEPTION: Article 2 RPC, stresses theprotective theory:a. Offense committed while in a Philippinevessel or airship.b. Forging or Counterfeiting any coin currency

note of the Philippines, or any obligationissued by the government.c. Introduction into the country of theabovementioned obligations and securities.d. While being public officers and employees,any offense committed in the exercise of theirfunctions.e. Crimes against national security and the Lawof the nations as defined in Title 1 Book of


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the RPC.THE LOCUS DELICTI OF CERTAIN CRIMESFrustrated andconsummated,homicide,murder,infanticide &parricideWhere the victim was injured (notwhere the aggressor wielded hisweapon)Attemptedhomicide, etc.Where the intended victim was(not where the aggressor wassituated) so long as the weaponor the bullet either touched him orfell inside the territory where hewasBigamy Where the illegal marriage was

performedTheft &robberyWhere the property wasunlawfully taken from the victim(not the place to which thecriminal went after thecommission of the crime)Estafa orswindling thruWhere the object of the crime wasreceived (not where the falsefalse

representationrepresentations were made)Conspiracy tocommit treason,rebellion, orseditionNOTE:Otherconspiraciesare NOTpenalized byour lawsWhere the conspiracy was formed(not where the overt act of

treason, rebellion or sedition wascommitted)Libel Where published or circulatedContinuingcrime

Any place where the offensebegins, exists or continuesComplex crimeAny place where any of theessential elements of the crimetook place

CHAPTER XV: BUSINESS ASSOCIATIONSCORPORATIONSFACTUALSITUATIONPOINTS OF CONTACTPowers andliabilitiesGeneral rule: the law of theplace of incorporationExceptions: For constitutionalpurposes even if thecorporation wasincorporated in the RP, itis not deemed a Filipinocorporation & thereforecant acquire land,exploit our naturalresources, and peratepublic utilities unless

60% of capital if Filipinoowned For wartime purposes we pierce thecorporation veil & go tothe nationality of thecontrolling stockholdersto determine if thecorporation is an enemy(CONTROL TEST)Formation of thecorporation(requisites); kind

of stocks, transferof stocks to bindthe corporation,issuance, amount Law of the place ofincorporationQuickTime and aTIFF (Uncompressed) decompressorare needed to see this picture.


& legality &dividends, powers

& duties ofmembers,stockholders andofficersValidity ofcorporate acts &contracts(including ultravires acts)


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Law of the place ofincorporation & law ofthe place of performance(the act or contract mustbe authorized by BOTHlaws)Right to sue &amenability tocourt processes &suits against it Lex foriManner & effectof dissolution Law of the place ofincorporation providedthat the public policy ofthe forum is not militatedagainstDomicile If not fixed by the lawcreating or recognizing

the corporation or by anyother provision thedomicile is where it islegal representation isestablished or where itexercises its principalfunctions (Article. 15)Receivers(appointment &powers) Principal receiver isappointed by the courtsof the State of

incorporation; ancillaryreceivers, by the courtsof any State where thecorporation has assets(authority is COEXTENSIVE)w/ theauthority of theappointing courtTHEORIES ON THE PERSONAL AND/ORGOVERNING LAW OF CORPORATIONS:1. Law of the place of incorporation this isgenerally the rule being adhered to by thePhilippines.

EXCEPTIONS:a. Exploration and Exploitation of Naturalresourcesb. Mediac. Wartime Ruled. Piercing of Corporate Veil2. Law of the place or center of management(center for administration or siege social) (centeroffice principle)

3. Law of the place of exploitation(exploitationcentre orsiege d exploitation)WHEN DOES THE PERSONAL LAW OF THECORPORATION GOVERNS?1. requisites for formation of the corporation anditslegal character2. The capacity and powers of the corporation:Notehowever that two questions should be asked indetermining the legal effect of an act of acorporation: First, is the corporation authorizedby its charter to do the particular act? Second,isthis act permitted by the law of the place wherethe act is done?3. Kinds of stocks allowed and transfer of stocksina way that would be binding on the corporation

4. Issuance, amount, and legality of dividends;5. The internal organization of the corporateenterprise, the rights and liabilities ofshareholders, members, directors, officers, theirrelations inter se, and stockholders participationin the management and in the profits.6. Alteration or modification of the charter andthedissolution of the corporation.PHILIPPINE JURISDICTION OVER FOREIGNCORPORATIONSConsent doctrine a foreign corporation willbe

recognized and will be allowed to transactbusiness in any state which gives its consent.(Secs.125, 126, 127and128 Corp. Code)NOTE: all foreign corporations lawfully doingbusiness here in the Philippines shall be boundby all laws, rules and regulations applicable todomestic corporations EXCEPT provisions forthecreation, formation, organization or dissolution ofcorporations or those which fix the relations andliabilities or duties of the stockholders, membersor officers of the corporation to each other.RIGHT TO BRING A SUIT

GENERAL RULE: if a corporation doingbusiness in the country is not duly licensed orauthorized to transact business in thePhilippines,it cannot be permitted to maintain or intervene inany action, suit or proceeding in any court oradministrative agency of the Philippines BUT itcan be sued before any court or administrativetribunals on a valid cause (Sec.133 of CorpCode).


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patent or for unfair competition3. agreements fully transacted outside thePhilippines4. petition filed is merely a corollary defense in asuit against it5. In case of Estoppel. A person who enters intoacontract with a foreign corporation and receivesbenefits from the contract is estopped fromsetting up the failure of said corporation to

comply with the requirements for doingbusiness,in order to avoid liability.MULTI-NATIONAL CORPORATIONS

Cluster of corporations of diverse nationalitiesjoined together by ties of common ownershipandresponsive to a common management strategy. Jurisdiction over a local counterpart mayamountto jurisdiction on the parent company if the localcounterpart is only a branch and is withoutseparate juridical personality from the mothercompany and when such local counterpart is buta conduit or alter-ego of the parent company. However, if the local counterpart is a subsidiarywith an entirely distinct personality, jurisdictionover the local counter-part is not jurisdiction overthe parent company.NOTE:A subsidiary is one which isincorporatedseparately from the mother company, thusobtaining its own juridical personality.PARTNERSHIPSFACTUAL SITUATION POINTS OF CONTACTThe existence or nonexistenceof legal

personality of the firm;the capacity tocontract; liability ofthe firm & the partnersto 3rd personsThe personal law ofthe partnership, i.e.,the law of the placewhere it was created

(Article 15 of the Codeof Commerce)(Subject to theexceptions givenabove as in the caseof corps.)Creation of branchesin the RP; validity &effect of the branchescommercialtransaction; & the

jurisdiction of thecourtRP law (law of theplace where brancheswere created) (Article15, Code ofCommerce)Dissolution, windingup, & termination of

branches in the RPRP law (Article 15,Code of Commerce)Domicile If not fixed by the lawcreating or recognizingthe partnership or byany other provision the domicile is where itis legal representationis established orwhere it exercises itsprincipal functions(Article. 15)

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

Documents

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