1. Conflict Midterm

CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017

Conflict of Laws Introduction Designations 1. Private International Law – This is how other authors would refer to the subject as known in some jurisdictions. 2. Conflict of Laws – In the Philippines, this is the official designation of the subject. No less than the Department of Education and the Supreme Court chose this designation.

TN: These two designations are one and the same. The term “Private International Law” is misleading Private international law was not chosen by DepEd and SC because it is misleading. Internationally, it is often confused with Public International Law while there is a world of difference between the two. It will be a misnomer. Conflict of Laws v. Public International Law Conflict of Laws

Public International Law

As to persons involved

Governs private individuals or corporations

Governs sovereign states and entities that are internationally recognized or possessed of international personality

As to nature Municipal or domestic in character

International in character

Applies to transactions which only sovereign states or entities with international personality are concerned and which generally affect public interest

As to remedies applied

Judicial or administrative tribunals in accordance with the rules of procedure of the country where they sit

at the subject matter, there really is no conflict. Precisely, the Conflict of Laws rules are designed to avoid conflict. But that is the best that they can come up with. Conflict of Laws Defined

Book: 1. That part of law which comes into play when the issue before the court affects some fact, event or transaction that is so clearly connected with a foreign system. 2. It embraces those universal principles of right and justice which govern the courts of one state having before them cases involving the operation and effect of the laws of another state or country. 3. That part of the municipal law of a state which directs its courts and administrative agencies, when confronted with a legal problem involving a foreign element, whether or not they should apply foreign or foreign laws. Every country has its own set of laws The study of Conflict of Laws is founded on one universally recognized principle that every country has its own set of laws. We have a community of nations governed by laws with respect to the relationship between nations. The member state itself has its own set of rules that governs its internal relationships—between States and citizens; and the relationship between citizens with respect to other citizens. COL is part of Municipal Law It is not international in character. “Municipal Law” means the internal or local law of each state. General classifications of laws governing every State Two general classifications of laws governing every State

As to transactions involved Deals with transactions strictly private in nature, in which country as such has generally no interest

Atty T: However, using Conflict of Laws is also a misnomer. If you look

Concerned states may first resort to peaceful remedies like mediation, negotiations, conciliation, arbitration, etc. If these fail, they may resort to forcible remedies like severance of diplomatic relations, retorsions, reprisals, pacific blockade, collective measures under UN Charter and war.

1. Purely domestic laws – Laws which govern disputes involving purely domestic elements. 2. Conflict of Laws or Private International Law – Laws which govern disputes involving a foreign element.

Example 1: Purely domestic dispute calling for the application of purely domestic laws. The dispute involves a breach of contract where Ms. Ibanez entered into a contract with Mr. Cabatana for the performance of Lingam Massage Services. They are both Filipinos and the contract is to be executed and performed in the Philippines. All the important elements of the contract relate to the Philippines: citizenship of the parties, place of execution and performance. Hence, it is a dispute involving purely domestic elements. Thus, the resolution of the dispute will involve Philippine laws, whether involving the capacity of the contracting parties, or the intrinsic and extrinsic validity of the contract.

Example 2: A dispute involving foreign element calling for the application of Conflict of Laws. Ms. Ibanez is a citizen of Spain while Mr. Cabatana is a citizen of Russia. The contract is executed in Japan and the service is to be performed in 1|U N I V E R S I T Y O F S A N C A R L O S

CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017 Vietnam. The suit is filed before Philippine court. If the dispute revolves around the issue as to capacity or the extrinsic validity of the contract, there will be two or more laws applicable relating to two or more different countries involved. Therefore, this dispute has a foreign element because it involves different countries. The significant components of the dispute – citizenship, place of execution and performance of the contract – relate to different countries. Q. When does a dispute involve a foreign element?

ANS: When facts, events, and transactions occur in two or more states

Examples of our Conflict of Laws 1. 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. If there is an issue involving a Filipino regarding: a) Status b) Legal Capacity c) Condition

and are affected by various laws of the different states involved. In the resolution of the dispute, a court where the case is pending has to make a choice as to which laws pertaining to various States involved should be applied.

Atty T: It doesn’t matter where the Filipino is found, he may be

Book: Any case which involves facts occurring in more than one state or

anywhere in the world, because our own COL rule provides that he is governed by Philippine law.

nation, so that in deciding the case, it is necessary to make a choice between the laws of different states or countries.

Atty T: This is a critical question for the court to know which set of laws to apply – purely domestic laws or conflict of laws rules. How the court deals with a COL situation In our study of Conflict of Laws, the seat of dispute is always the Philippine setting, invested with a foreign element. This is brought before Philippine court, prompting it to apply our own Conflict of Laws. We don’t care about Conflict of Laws abroad. It is possible, however, that what will be applied is a foreign law when our own Conflict of Laws say so.

Example: The issue is about wills – Ms. Ibanez, a Tanzanian citizen, executed a will in Tanzania, but she happened to fall in love with the Philippines. She stayed in the Philippines for several years and acquired several properties. Eventually, she died and left a substantial amount of estate in the Philippines. She also left several husbands.

Issue: Who among the husbands is entitled to the properties left by Ms. Ibanez? Since the case involves a conflict of law, the forum should apply our own conflict of laws rule. Under our Conflict of Rules on Succession (Art. 16, par. 2), the national law of the testator will apply in so far as the order of succession, the amount of successional rights, validity of the testamentary provision and the capacity of the heir to inherit. Thus, in this case, since the nationality theory applies, then the national law of Ms. Ibanez (Tanzanian laws) will apply as provided by our very own COL rule. Important: The seat of the controversy is our own court and the applicable laws are our own conflict of laws rules.

2|U N I V E R S I T Y O F S A N C A R L O S

2. Situs of the Crime Article 2, Revised Penal Code Application of its provisions. — Except as provided in the treaties and laws of preferential application, the provisions of this Code shall be enforced not only within the Philippine Archipelago, including its atmosphere, its interior waters and maritime zone, but also outside of its jurisdiction, against those who: 1. Should commit an offense while on a Philippine ship or airship 2. Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippine Islands; 3. Should be liable for acts connected with the introduction into these islands of the obligations and securities mentioned in the presiding number; 4. While being public officers or employees, should commit an offense in the exercise of their functions; or 5. Should commit any of the crimes against national security and the law of nations, defined in Title One of Book Two of this Code

Atty T: Only crimes committed within the Philippine territory can be prosecuted, therefore, our courts have no jurisdiction over crimes that happened outside of the Philippine territory except on instances where the protective theory applies. GR: Territoriality principle XPNs: Protective theory (Article 2 of the RPC – the five mentioned above)

Example: A Filipino commits a crime in Russia against a fellow Filipino. Our courts cannot have jurisdiction over the said case because our courts can only acquire jurisdiction over crimes which happened in the Philippines.

CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017 3. Lex rei sitae or lex situs Article 16, Civil Code Real property as well as personal property is subject to the law of the country where it is stipulated. 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. Important: If the dispute involving a property involves: 1. Validity of the transaction (either the extrinsic or intrinsic validity of the contract), or 2. Capacity of the contracting parties Then the issues should be resolved on the basis of Lex Rei Sitae (Art. 16) GR: Real property as well as personal property is subject to the law of the country where it is situated. XPN: Article 16, 2nd par. Governed by the national law of the decedent. 4. 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. 5. Property relations of spouses Article 80, Family Code 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.

Atty T: Where one of the parties of the marriage is a Filipino, the property relations should be governed by Philippine laws.

Exceptions: Art. 80, par. 2, Family Code. 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.

3|U N I V E R S I T Y O F S A N C A R L O S

Three Stages in the resolution of a COL problem Q. What are the three stages in the resolution of a conflict of laws problem?

ANS: 1. Determination of jurisdiction 2. Choice of law 3. Enforcement of judgment Determination of jurisdiction Jurisdiction Jurisdiction is determined by the law of the country where the suit is lodged or filed.

Three kinds of jurisdiction: 1. Jurisdiction over the person It is the competence or power of a court to render a judgment that will bind the parties involved.

Jurisdiction over the: a) Plaintiff – acquired by instituting the action by the proper pleading b) Defendant – acquired when he enters his appearance or by coercive power of legal process exerted by the court over him (personal or substituted service of summons) General rule: Strict compliance with the rules is required for court to acquire jurisdiction. The question of erroneous service of summons must be raised before judgment is rendered, otherwise, this would be a clear case of waiver. Exception: Defective service may be cured by actual receipt of summons by the defendant, or if in any other manner, knowledge of the existence of the case should come to his attention. How service of summons is effected: If it is an action in personam: 1. Personal service 2. Substituted service

TN: Service by publication is not sufficient, whether the defendant is in the Philippines or not. When service by publication authorized 1. Actions in rem 2. Quasi in rem 3. Action involving the personal status of plaintiff (Rule 14. sec. 15. 1997 Rules on Civil Procedure) When extraterritorial service of summons effected Sec. 15, Rule 14, ROC 1. When the defendant does not reside and is not found in the Philippines, and the action affects the personal status of the plaintiff or

CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017 2. When the defendant does not reside and is not found in the Philippines, and the action relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or 3. When the defendant is a non-resident but the subject of the action is properly located in the Philippines, in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or 4. When property of a non-resident defendant has been attached within the Philippines. How extraterritorial service effected

3. Jurisdiction over the res Jurisdiction over the particular subject-matter in controversy, regardless of the persons who may be interested therein. Basis: The presence of the property within the territorial jurisdiction over the persons whose interests in the property are affected. Purpose: To impose a personal liability on anyone but it is to affect the interests of all persons in a thing.

Examples: Land registration cases and admiralty cases Important: If the court has no jurisdiction, then the court shall dismiss. If it has jurisdiction, determine whether:

Such service may, by leave of court, be effected: 1. By personal service (Sec. 6, Rule 14) 2. By publication, but copy of the summons and the order of the court must be sent by registered mail to the defendant’s last known address. 3. In any other manner that the court may deem sufficient (i.e. registered mail. See Midgely v. Fernandez) 2. Jurisdiction over the subject or nature of the action

Book: It is the power to hear and determine cases of the general

a) To assume jurisdiction, or b) To dismiss it on the ground of forum non conveniens

TN: It is the law of the forum that determines whether the court has jurisdiction or not over the case. Principle of forum non conveniens Even if the court has jurisdiction, it may, in the exercise of its jurisdiction, still dismiss the case, not because of lack of jurisdiction, but because it believes that it is not the convenient forum.

class to proceedings in question belong.

Atty T: This principle has nothing to do with jurisdiction. The court may It is conferred by law and cannot be conferred by consent of the parties (e.g. Constitution and Judiciary Reorganization Act, as amended). The allegations of the complaint or petition read in the light of the proper jurisdictional law that confer jurisdiction. The Court must also consider the possible enforceability of its decision in foreign states subject to the rights of said states. Except from the Supreme Court whose jurisdiction is vested by the Constitution, all other courts have their jurisdiction defined by law. Therefore, jurisdictional issues over subject matter or nature of the action should be determined by the law/s that created the courts in the Philippines. Such laws are: 1. B.P. 129 which created various courts and apportioned their respective jurisdiction. 2. RA 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.

dismiss the action even if it has jurisdiction if forum non conveniens applies. But this is discretionary on the part of the court. The purpose of this is to avoid universal forum shopping which would result in harassment and vexation of the defendant.

Example: When a non-resident citizen initiates an action in another state of which neither of the parties is a resident. The obvious reason here is to inconvenience the defendant or to shop for a friendly forum. The plaintiff may believe that the court or the law of that country are more sympathetic to his cause. Another reason is litis pendentia. There is already a case pending; another case cannot anymore be pursued in another state. That second case may be dismiss on the ground of forum non convenience. When forum non conveniens does not apply; Elements The court may or may not dismiss a case on the ground of forum non conveniens because it is discretionary. The court may proceed with the case involving a foreign element, conduct trial and render judgment if the following requisites are present: 1. The Philippine court is one to which the parties may conveniently resort to.

(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.

2. The Philippine court is in the position to render an intelligent decision as to the findings of facts and law.

(c)

3. The Philippine court has the adequate machinery to enforce its decision.

If incapable of pecuniary estimation such as specific performance or injunction, jurisdiction is lodged with the RTC.

4|U N I V E R S I T Y O F S A N C A R L O S

CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017 When Philippine court is deemed an inconvenient forum The following are instances when the court may dismiss the case on the ground of forum non conveniens: 1. Parties involved are not residents of the Philippines

factual finding on the matter. The Philippine court was also not in the position to enforce the judgment because the defendant was in China and summons was not served. Navida et al v. Dizon et al. Facts:

2. Material witnesses are not residents or cannot be found in the Philippines and it will be too costly to bring them before the Philippine court to testify. 3. Documentary or object evidence to establish one’s cause of action or defenses are not found in the Philippines. 4. Forum shopping

This was a class suit involving a product liability tort brought about by workers in banana plantations in Davao and General Santos. The workers alleged that due to the exposure to the pesticide manufactured by the defendants, they were inflicted with diseases. The workers accused the defendants for negligence for exposing them to risk. Cases were filed in General Santos and Davao. The defendants, being nonresidents, raised the issue of forum non conveniens.

Atty T: If these instances are present in a case, the court may find that

Issue:

Philippine court is not the convenient forum. Therefore, the case may be dismissed.

Whether the Philippine court was the convenient forum to decide the dispute.

Manila Hotel v. NLRC

Ruling:

Facts:

Yes. It was the convenient forum. The SC took note of the fact that the plaintiffs were all Filipinos. The workers, material witness, and the doctors were all based in the Philippines. The place where they claimed to have been exposed to the pesticide were located in the Philippines. The alleged cause of action also took place in the Philippines. Taking consideration of all these, the SC found that the Philippine court was the convenient forum.

Defendants in this case sought the dismissal of the action on the ground of forum non conveniens. This involves a Filipino worker who had a job in Oman as a worker. While working there, he received a job offer from the Manila Hotel in Beijing, China. The Filipino eventually quit his job in Oman and accepted the work in China. But while working in China, he was retrenched to the Tiananmen Square Massacre. The employer alleged that because of the political upheaval, they experienced losses so they had to terminate the Filipino worker. The Filipino worker sued the Hotel in the Philippines. Issue: Whether or not the NLRC was the convenient forum to decide the dispute. Ruling: No. There are three elements that are required before a Philippine court can proceed taking cognizance of a dispute involving foreign elements:

Forum non conveniens cannot be a ground for a motion to dismiss American Bank v. CA All the elements required for purposes of the Philippine court taking cognizance of the case were present. The case here could not be dismissed for forum non conveniens. Forum non conveniens can be a basis for dismissal of an action, but it cannot be a ground for a motion to dismiss. The case will be dismissed by the court after trial on the merits but we cannot file a motion to dismiss based on forum non conveniens.

1. The local court is the court to which the parties can conveniently resort to 2. It must be in the best position to render an intelligent decision as to the facts or the law 3. It must have the adequate machinery to enforce the ruling.

Philsec Investment; Raytheon International; Hazegawa and Nippon Cases

None of these requisites were present in this case. The Defendants were neither residents nor doing business in the Philippines. The employment contract sued upon, negotiation, perfection, and perfection of the contract all took place outside the Philippines. There is no way that the Philippine court be the convenient forum and neither is it in the best position to render an intelligent decision as to the facts or the law because the employment contract was governed by foreign laws, applying lex loci celebracionis.

(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.

The issue was not whether the termination should be governed by foreign law. The issue was whether or not the NLRC was the right forum to decide if the termination of the Filipino Worker was justified because of the alleged political upheaval, and the SC took this as a factual issue which took place in China. The SC was not the right forum to make a 5|U N I V E R S I T Y O F S A N C A R L O S

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:

Atty T: I don’t agree with the SC that MTD can only be filed based on the grounds enumerated under Rule 16. There are grounds for a dismissal of the action that can be alleged in the MTD although this ground is not one of the grounds enumerated under Rule 16. The grounds on Rule 16 are not exclusive.

Example: Failure to prosecute, or violation of the rule on nonforum shopping (two ways – filing two or more actions involving the same parties and issues; failure to comply with the requirement of filing certification of non-forum shopping)

CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017 (2) The dismissal of the dispute involving a foreign element requires factual determination of the grounds relied upon.

Choice of Law

Atty T: This is the 2nd stage – after the court has decided that it is the The circumstances that would show that the Philippine court is an inconvenient forum should be established as a fact. The grounds relied upon should be established as a fact, therefore it cannot be a ground for a MTD, but it can be raised as a defense. The factual determination should be done after trial on the merits. Because it’s a matter of defense and therefore best threshed out after trial on the merits. If you are the defending party and you believe that the Philippine court is an inconvenient forum, your remedy is to file an answer and incorporate as one of your defenses forum non conveniens. If the court finds merit because of the factual circumstances, then the court may dismiss, but only after the trial on the merits. The concern of the SC is that it requires a factual determination of the basis therefor – meaning those circumstances which show that the Philippine court is an inconvenient forum requires the presentation of evidence to establish the said facts. These factual determination can only be done by trial on the merits.

Atty T: This is not accurate because the rule on Evidence in Motion – requires a party to submit evidence to prove the factual ground relied upon on the MTD. Presentation of evidence cannot only be done in trial on the merits. The express provision of the rules, specifically the rule on evidence in motion, allow a party to present evidence in support of his motion, especially when the motion is based on a factual ground. Under this rule, the proponent may ask the court for hearing and during the hearing, present evidence to prove the factual ground relied upon in the motion to dismiss. What I am trying to say is, presentation of evidence is not the exclusive province in the trial on merits. It can be done in a proceeding or the hearing for the motion to dismiss. If the Philippine court is believed to be the inconvenient forum and we do not want our parties to go through the inconvenience, the court would inconvenience them first before dismissing it. What will happen is if the court dismisses it, if you are the party plaintiff, you will have to file the action somewhere else years and years after litigation.

TN: For the purposes of the bar, the rule is settled. You cannot file a MTD on the ground of FNC. The remedy is file an answer incorporating it as one of your defenses.

Atty T: There is a remedy under the rules when you don’t file a MTD and instead, you opt to file an answer and incorporate all your grounds in the MTD. You have the option to ask for the court for a preliminary hearing on the affirmative defenses. The effect is it is as if a MTD is filed. The court will hear your affirmative defenses. There is no MTD, instead there is an answer. But before proceeding in trial, the court may hear the defenses in your answer. This remedy and MTD are both not available when it comes to FNC. This is best resolved after a full-blown trial.

convenient forum to decide on the merits of the case. This is the stage where the court will now apply the rules on conflict of law. Important: Where the court has jurisdiction and is the convenient forum, the court will proceed to trial. In the resolution of the dispute, since the case involves a COL problem, the court will apply our COL rules and eventually the applicable law which could either be a foreign law or Philippine law. Jurisdiction v. Choice of law When the law applicable in the resolution of the dispute is a foreign law, the remedy of the party is not to file a motion to dismiss the case on the ground of lack of jurisdiction. Such ground cannot be used just because the law applicable is a foreign law. Jurisdiction First step in resolving a COL dispute and determined by using Philippine law and rules Involves issue of whether the court has jurisdiction

Choice of law Second step in resolving a COL dispute Involves issue of which law should apply Possible only after the court assumes jurisdiction and conducts trial

Important: It should be clear that just because the case is filed before Philippine court, it does not necessarily mean that the law applicable should always be Philippine law. There is no inconsistency with a Philippine court deciding a case and a foreign law applied in the resolution thereof. Case in point is Hazegawa and Nippon v. Kitamura. Hazegawa and Nippon v. Kitamura Facts: This involves an Independent Contractor Agreement (ICA) entered into by and between Japanese nationals. In said contract, Kitamura was engaged as Project Manager by Nippon in its STAR Project. When STAR Project was near completion, DPWH engaged Nippon in another project, BBRI Project. In the contract, Kitamura was named as the Project Manager. However, Hazegawa, Nippon’s General Manager, informed Kitamura that the company will no longer renew his ICA. Kitamura demanded to be assigned in BBRI Project but Nippon insisted that his contract was for a fixed term that had expired. Kitamura then filed for specific performance and damages with RTC. Nippon filed a Motion to Dismiss on the ground that the court has no jurisdiction over the case because the laws applicable are the Japanese laws since the parties are Japanese nationals, the contract was in Niponggo, and it stipulated that any dispute that may arise out of the contract shall be resolved by Japanese laws.

Atty T: The contention of Nippon is like saying that if the foreign law is the applicable law, the Philippine court has no jurisdiction.

6|U N I V E R S I T Y O F S A N C A R L O S

CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017

Examples: Law on public officials and the discharge of their

Ruling:

functions

In the resolution of a COL problem, three successive stages are involved:

e) Law on public officials and the discharge of their functions

(1) Determination of jurisdiction (2) Choice of law (3) Enforcement of the judgment

f)

Examples: prostitution, corruption, bribery

The issue of which law is applicable is relevant only insofar as the second stage is concerned, where the court is already in the stage of making a choice of law. This stage takes place after the court has assumed jurisdiction and conducts trial. The issue of which law is applicable has nothing to do and is irrelevant insofar as the issue of jurisdiction is concerned which is in the first stage.

g) Foreign law will endanger vital interest of the state, especially security h) If the foreign law although applicable is contrary to the established sound public policy of the forum, then the law of Philippines shall apply.

Even if assuming that the issue can be resolved by applying Japanese laws, it does not necessarily follow that the Philippine court has no jurisdiction. Jurisdiction is determined by the Philippine law and under the existing laws, RTC, where the instant case was filed, has jurisdiction over action for specific performance which is an action incapable of pecuniary estimation.

Examples: 1. A divorce law cannot be enforced if both parties are Filipinos 2. a joint will executed by Filipinos is not valid

How courts discharge the burden of making the choice of law

3. Incestuous marriages under the Family Code and those considered void by the Code by reason of public policy between Filipinos are null and void

1. The court has to recognize that there are instances where it has no choice but to apply internal law (even if there is a foreign element)

Atty T: Our laws on public policy is superior over foreign laws.

Example: Art. 80 of the Family Code1

Philippine public policy always prevails. This is reinforced by Art. 17 (3rd paragraph) of the Civil Code.

Where one of the parties to a marriage is a Filipino, our law provides that their property rights shall be governed by the Philippine law.

Article 17 par. 3, Civil Code 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.

2. The court has to recognize that there are instances where foreign law, although applicable, is not applied. Instead, the court should apply the Philippine law. a) When the foreign law is procedural in nature

Contrary to the universally accepted principle of morality

Cases where public policy prevailed over foreign law

This is governed by the law of the forum (lex fori) – law of the country where the court sits. Book: There are no vested rights in rules of procedure.

Cadalin v. POEA

Exception: When the law is both procedural and substantive,

Involves labor complaints filed by Filipino contract workers working in Bahrain. They were dismissed from work. They returned to the Philippines and filed complaints against their employer. The respondents interposed the defense of prescription. The employers argued that, in the contract, the parties expressly stipulated that any dispute of the contract shall be governed by the laws of Bahrain, applying lex loci celebrationis. Based on the pertinent law imposed in Bahrain, the prescriptive period of the labor complaint is 1 year.

like the rules on prescription, and the Statute of Frauds which under Philippine law are substantive. b) Penal in nature

Book: Territoriality principle applies (Article 2, RPC) A “penal clause” in a contract entered into abroad may, however, be enforced here because such clause is not criminal in nature but only provides for liquidated damages. c) Fiscal, revenue or tax laws d) Administrative laws

1

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. Property relations of the spouses where one of the parties

7|U N I V E R S I T Y O F S A N C A R L O S

Facts:

Ruling: Even if Bahrain law is supposed to be the law applicable, following the stipulation of the parties and the fact that the employment contract was performed in Bahrain, we cannot recognize that law because that would be in contrary to our public policy - our constitutional protection to labor clause. Instead, the court applied our own labor laws, such that monetary claims prescribe in 3 years.

is a Filipino, in which case, the law of the Philippines shall apply.

CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017 American Bank v. American Realty Corporation Facts: Loan transactions between Bank of America and 3 borrowers who are all foreign corporations. When the borrowers failed to pay the loan, they requested for the restructuring of their loan. The bank agreed on the condition that these 3 borrowers should put up a collateral. American Realty Corp (ARC), a corporation organized under Philippine laws, as guarantor, and in compliance with the demand of the bank, executed a REM over its properties in the Philippines to secure the loan. Despite the restructuring agreement, the 3 corporate borrowers failed to pay, which prompted the bank to institute an action for collection of the loan before the courts in England and Hongkong. During the pendency of the collection suit, the bank also foreclosed the mortgage constituted by ARC over its properties located in the Philippines. It succeeded in the foreclosure. This prompted ARC to institute an action for damages, alleging that it was illegal for the Bank of America to still foreclose the mortgage when it already decided to collect the unpaid loan by filing a collection suit before the courts in England and Hongkong, invoking the rule enforced in the Philippines which prohibits the splitting of a single cause of action. The rule provides that a single cause of action may allow a party to resort to two or more remedies but because there is only one cause of action, the resort to these remedies should be on an alternative basis and not cumulative. If the party avails of one remedy arising from one single cause of action, he is deemed to have abandoned the other remedies. Applying the principle, ARC argues that since Bank of America already decided to collect the loan by filing a collection suit before the courts of England and Hongkong, it should not have foreclosed the mortgaged. The bank argued that in all the loan contracts between the bank and the borrowers, it is stipulated that any dispute that may arise out of the transaction should be governed by the laws of England. Under English law, splitting a single cause of action is not prohibited and thus the creditor may resort to both remedies: to file an action for collection and at the same time, enforce the security (mortgage). Issue: Whether the Philippine law or English law should apply. Ruling: The Philippine law should apply. It is true that by applying our own conflict of law rules on contract, English law is applicable (choice of law clause). However, even if the laws of England is the applicable law, the Philippines cannot recognize the same for being against a sound and established public policy of the forum. In this case, the public policy sought to be protected is the principle proscribing the splitting up of a single cause of action. Important: Even if the foreign law should have been applicable pursuant to our Conflict of Law rules, such application cannot be had if such application would contravene our own public policy.

8|U N I V E R S I T Y O F S A N C A R L O S

Other principles which may help the court in discharging its burden of making the proper choice of law: 1. Processual presumption 2. Characterization 3. Renvoi Processual Presumption Processual presumption When the proper foreign law has not been properly proved, the court of the forum may presume that said foreign law is the same as its local or domestic law, which it can now apply. Yao Kee v. Gonzalez Facts: The case was about marriage with lex loci celebracionis as the connecting factor. It was alleged that the supposed marriage took place in China, without a solemnizing officer as per custom. Chinese laws would have applied pursuant to our COL rule (lex loci celebracionis or the law of the place where the marriage was solemnized). However, the Chinese law applicable was not sufficiently established by the party alleging the same. Ruling: Pursuant to the principle of processual presumption, it is presumed that the laws of China on marriage is the same with Philippine laws. In the Philippines, a solemnizing officer is required for there to be a valid marriage, to whom the parties must personally appear and take oath. Therefore, contrary to the law in Philippines on marriage, the supposed marriage in China is void since it was solemnized without a solemnizing officer. Asiavest Ltd v. Antonio Heras Facts: This was an action for enforcement of a foreign judgement. Asiavest limited obtained a judgment from the Hong Kong Courts against Heras. Since Heras was not in Hong Kong and such judgment could not be enforced against him there, Asiavest filed the action in the Philippines (action for enforcement of foreign judgment). By way of defense, Heras argued that the judgment in Hong Kong is void because of lack of jurisdiction over his person. He alleged that the service of summons effected upon him in the Philippines was not made in accordance with the laws of Hong Kong. In this case, Heras invoked Hong Kong law on the service of summons. Unfortunately, he failed to sufficiently prove the pertinent law of Hong Kong on service of summons. Ruling: The Supreme Court had to rely on the principle of processual presumption and had to apply Philippine Law in this case. Under Philippine law on the service of summons, in an action in personam, summons can only be served personally. Personal service summons presupposes that the summons was served upon him in the territory of the country where the case was filed. This means

CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017

Atty: Consular authentication is indicated with a Red Ribbon

extraterritorial service of summons is not allowed. In the case at bar, Heras was not in Hong Kong when the summons was served, so applying Philippine Law on service of summons in actions in personam, the summons should have been served on Heras while he was still in Hong Kong. Even though the rule is that when a defendant is temporarily out of the country, extraterritorial service can be done, such rule will not apply because Heras was not out of Hong Kong temporarily, he was out of Hong Kong permanently. Applying Philippine law on the matter, the extraterritorial service of summons served upon him was invalid and the judgment cannot be enforced. Modes of Proving Foreign Law Section 24, Rule 132 Proof of official record. — The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. Section 25, Rule 135 What attestation of copy must state. — Whenever a copy of a document or record is attested for the purpose of evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. 1. By official publication

Atty T: Foreign law, judgment or document can be proven by presentation of the official publication of such. If you resort to this mode, you have to look for the counterpart of the Official Gazette of the foreign country. It must be the official publication of the law. 2. By certified true copy of the original law

Requisites: (a)

The certified true copy of the original law must be accompanied by an attestation by the legal custodian of the foreign document. The attestation must indicate that the certified copy is the faithful copy of the original copy under the custody of the person executing the certification.

Note: Legal custodian here is the head of the national library or Congress itself as the official repository of our laws. (b) Attached to the certified true copy of the law must be the certification of the Philippine Consular Official of the Country where the foreign document is from. The certification must contain that the Philippine Consular official in the foreign country undertakes to ensure that the person attesting to the authenticity is indeed the legal custodian, therefore assuring to us that the document is indeed authentic.

9|U N I V E R S I T Y O F S A N C A R L O S

which is the distinguishing feature of a consularized document. It shows that the document is foreign and that it is duly authenticated. Without that authentication, the foreign document is inadmissible as evidence in our court. 3. Testimonies of expert witnesses

Atty T: It is another mode to prove foreign law. It is not mentioned by the rules but by jurisprudence. Asia Vest Limited v. Herras Facts: Herras tried to prove that the service of summons violated the Hong Kong Law referring to the extraterritorial service of the summons. In his effort to prove Hong Kong Law on the matter, he presented a witness who purports to testify that the service of summons did not follow Hong Kong Law. Ruling: The SC said that while it is true that a foreign law may be proved by a testimony of an expert witness, the problem with Herras here is that, his witness only testified on his conclusion that the service of summons was not made in accordance with the Hong Kong Law on the matter. There was failure to prove the specific Hong Kong Law which governs service of summons. Manufacturers Hanover Trust Co. v. Guererro Facts: Involves an action for damages filed by a bank depositor against a bank for allegedly illegally withholding his account and some other illegal acts. In his complaint, the plaintiff sought to recover all forms of damages that can be found in the book (MENTAL damages), but the bank argued that based on their contractual relations, the parties stipulated that whatever dispute that may arise out of their contract should be governed by the laws of New York. It so happened that under the laws of New York the only kind of damage that can be recovered is actual, other forms are not recoverable. In its effort to prove the foreign law in NY on the matter, the bank presented an affidavit of a supposed expert witness. But again, the bank committed the same mistake as Herras did. The witness simply made his personal conclusion that under the laws of NY, other forms of damages are not recoverable. Ruling: SC said, while it is true that a foreign law may be proved by a testimony of an expert witness, in this case, the witness was not able to prove sufficiently the NY Law because he failed to point out the specific NY Law. Important: It is settled that an expert witness may prove a foreign law but make sure that the witness can prove the existence of the foreign law itself. Theoretically, even if this is possible, you will be burdened with two problems. First, you will have to present the foreign law itself and at the same time, you will present a witness. The most practical way is to submit a copy of the foreign law that is duly authenticated by the Philippine Consular Official. This is the common practice.

CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017

Characterization Characterization The process of assigning a certain set of facts or factual situation to its proper or correct legal category. By characterizing the legal problem, the court or the parties involved reach the proper solution whether to apply local law or the proper foreign law. Saudi Arabia Airlines v. CA

go back to Saudi Arabia in the guise of asking her help in the investigation of the culprits when in truth and in fact, the purpose there was to charge and prosecute him for the crime, took place in the Philippines. 3. The defendants in one way or the other, was deemed to be doing business in the Philippines having a sales agent for purposes of selling airline tickets. Gibbs v. Government of Philippine Islands

Facts:

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.

This involves an American who happens to have several properties in the 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.

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 first classified the factual problem. It looked at the complaint and determined that it was based on human relations provisions of the Civil Code, Article 19 and 20. In short, the SC determined that the action is one for tort arising from that incident resulting in termination of her employment. It is not a complaint for illegal dismissal or a labor complaint but one for tort action for damages. 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 delicti commissi (the law of the country where the tortious act is committed). Q. What is the lex loci delicti commissi when the action is based on two or more tortious acts occurring in two or more States? Important: ANS: Apply the Most Significant Relationship Rule. The country where most of the significant components of the transaction or event took place is deemed to be the lex loci delicti commissi.

Atty T: It is therefore inevitable that the court will determine where the tortious act was committed. Had the tortious act sued upon been a single act, there would have been no problem determining the lex loci delicti commissi. What makes this case a little complicated is if the complaint is founded on a series of alleged tortious conduct, some of which occurred in Saudi Arabia, some in the Philippines. Given the following factual circumstances which are the most significant events or circumstances relating to the transactions or events sued upon, the Supreme Court said Philippines is the place of commission: 1. The complainant, the stewardess is a Filipino national 2. The acts of deception employed by the airline in convincing her to 10 | U N I V E R S I T Y O F S A N C A R L O S

The registrar of deeds agreed to act favourably on the request, but he imposed a 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 tax should be paid. Mr. Gibbs refused, contending that his request for the transfer of titles of 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. 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. Under US laws, the interest of a wife in the property acquired during the marriage is only inchoate, it is not an existing right of ownership. 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 wife did not have an existing right, only inchoate. 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. Q. What is the Philippine Internal Law that governs ownership by the spouses over properties acquired during the marriage?

ANS: 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. Both of them have existing interest over the properties belonging to the conjugal partnership. Unlike the laws in the US where the wife’s interest over the property is only inchoate, ours in the Philippines, it’s really an existing right. When the wife dies, following that principle, his or her interest over the property, which was then existing at the time when she was still alive, will be transmitted to the husband pursuant to the laws on succession.

CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017 Applying our tax laws, estate tax should be paid. By applying the Conflict Rules on Property, the Supreme Court applied our Internal Law particularly the law that govern ownership by spouses over properties acquired during the marriage.

The Filipina contested the intrinsic validity of the will (amount of successional rights), arguing that she is entitled to get more from the estate of her father. She invoked Philippine law. Under Philippine law, the illegitimate child is entitled to ½ of what the legitimate child is entitled to.

Renvoi Doctrine

Sir: Another principle that may help the court in discharging its burden by making the proper choice of law is the problem of the renvoi.

Issue: Whether the will is intrinsically valid insofar as the apportionment of the estate is concerned.

Renvoi problem The problem of the renvoi literally means “the referring back and forth of the issue from one law to another.” This is otherwise known as the “international football”.

Ruling: No.

Atty T: The factual problem is with regard to wills and succession and Important: The “renvoi” does not contemplate of a situation where the case is tossed back and forth between two courts. There is only one court involved and that is the Philippine Court. What is being referred back and forth is the law applicable to resolve the issue.

the connecting factor is Art. 16, 2nd par, referring to the national law of the testator. In this case, the US Law has two general classifications, the internal law and COL. Two classifications under the US law:

Example: The case is filed before Philippine court so the court is confronted with a particular “conflict of law” problem about wills and succession, particularly the intrinsic validity of a will. Classifying the factual problem to be one falling under succession, then the Philippine court will apply our COL rules on wills & succession and that is Article 16 (governed by the national law of the decedent). Q. When does the problem of renvoi arise?

ANS: When there is a doubt as to whether the reference of the law of the forum to a foreign law, either refers to: (a) The internal law of the forum, or (b) The entire body of law of that foreign country including its conflict of law rules. Two general classifications of Conflict of Law COL presupposes that ever state has its own set of laws and every set of laws has two general classifications: 1. Internal law 2. Conflict of Law rules COL of the Philippines Our own conflict of laws simply refer to a foreign law. It does not make any specific reference.

Example: Article 16 (Intrinsic Validity of Will) – Testate or Intestate succession shall be governed by the national law of the decedent.

Atty T: It does not specify which classification of law. There lies the confusion because the two sets of laws in that particular country may not be the same. Edward Christensen v. Aznar Facts: Edward is an American Citizen domiciled in the Philippines. During his lifetime, he executed a will which affects properties located in the Philippines. 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. 11 | U N I V E R S I T Y O F S A N C A R L O S

1. Internal Law – do not adopt a system of legitime. Any person can dispose of his estate by will in the manner he or she deems fit without any limitation imposed by law. (Contrary to Philippine 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 governs. 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 Philippine law.

Atty T: Here lies the confusion since our COL rule does not specify which classification of law to apply. The results may vary depending on what law is to be applied: (a) If we apply the internal law of the US – Filipina daughter does not have cause of action (b) If we apply the COL of US – Filipina daughter has a cause of action How the court resolves the doubt brought by renvoi There are four suggested solutions according to literature 1. Court will accept the renvoi Important: This is what is adopted in the Philippines following the ruling in the case of Christensen v. Aznar. 2. Court will not accept the renvoi Once the foreign law’s own COL rules refer the issues to a foreign law, the forum will not accept it and insist that the foreign law of that country should be applied.

Atty T: Had the SC applied this solution, the Filipina could not have recovered what is due to her under Philippine law. The case chose to accept it because Helen is a Filipino, which solution is more favorable to the Filipino.

Christensen doctrine: Our forum shall accept the referring back of the issue to us and apply our internal law.

CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017

Atty T: By the employment of the word “should/shall”, it is therefore mandatory. It also appears that this is the only solution. Based on this ruling, authorities on COL are one that the solution adhered to in the Philippines is to accept the referring and apply our own internal law. 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: The last two theories are not so popular. Conflict Rules on Personal Law Personal law The law which attaches to a person wherever he may go. It is the law that generally governs the following: 1. Family rights and duties 2. Status 3. Condition 4. Legal capacity Specific matters falling under “Status” 1. Single, married or divorced 2. Minor, of age or senior citizen 3. Can pertain to the personal qualification of the individual like profession

Atty T: All these personal circumstances pertain to one’s identity as he is known by society. Status, simply put, pertains to one’s place in society. His name included. Status v. Capacity Status

Personal Law – Nationality Theory Personal Law may refer to: (a) National law (b) Law of domicile (c) Law of the situs of the event or transaction Important: The Philippines follows the nationality theory. This is our conflict of laws rule on personal law (Article 15, Civil Code). 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: Two Filipinos entered into a contract of marriage in Hongkong where the marrying age is 15. In the Philippines, 18 is the allowable age of marriage. A COL dispute could arise. Which law is applicable in determining the legal capacity of the parties to contract marriage – Hongkong or Philippine law?

ANS: Philippine law applies, following Article 15 of the Civil Code. Rules on Divorce Divorce obtained abroad is binding upon the alien spouse Regardless of who between the spouses (whether it be the Filipino or the foreigner spouse) obtained the divorce abroad, the divorce decree insofar as the alien spouse is concerned, is valid and binding, so long as it was obtained in accordance with the alien spouse’s national law. Divorce obtained by Filipino spouse will not capacitate him or her to remarry Under Article 26 of the Family Code, the Filipino spouse is not capacitated to remarry if he or she (Filipino spouse) obtained the divorce decree abroad. The only divorce that will capacitate the Filipino spouse to remarry is that kind of divorce which is obtained by the alien spouse, provided that the national law of the alien spouse allows divorce.

Capacity

 Place of an individual in society

 It is only part of one’s status.

 Consists of personal qualities and relationships, more or less permanent, with which the state and the community are concerned.

 It is the sum total of his rights and obligations.

 Includes the civil status, paternity and filiation, minority, capacity to enter into transactions, name, sex, and his profession in certain cases

Article 26, 2nd par, Family Code 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. Van Dorn v. Romillo Facts: The case involves an American husband and a Filipina wife. The Filipina wife initiated and obtained a divorce decree. She returned to the Philippines and started to manage a business. When the American husband realized that the business is doing well, he followed his wife in the Philippines and filed an action that he be allowed to administer the same business (post-divorce business). He contends that he is still the husband because divorce is not recognized in the Philippines and under Philippine law, there should be joint administration of conjugal properties. Note that this is done after the divorce decree was obtained.

12 | U N I V E R S I T Y O F S A N C A R L O S

CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017 Ruling:

divorce decree should be acknowledged.

Applying nationality theory, the divorce decree is binding upon the alien spouse. Our public policy against divorce does not extend to the alien spouse. The husband is American so his status must be governed by American law. American law recognizes divorce, so insofar as the American spouse is concerned, the divorce is valid. He is no longer the husband.

Q. Suppose in Van Dorn, it is the American husband who acquired certain business after the divorce decree was obtained abroad and the Filipina wife filed an action to participate in the management; or suppose after the divorce decree was obtained in Germany, Pilapil, the wife, discovered that while they were married, the German husband was playing around and the Filipina wife instituted concubinage; or in Dacasin, it was the Filipina wife who filed an action to enforce the contract?

Atty T: The SC did not rule on the validity of the divorce insofar as the Filipina wife was concerned. Pilapil v. Ibay - Somera Facts: This involves a couple, a German and a Filipina. The German husband obtained a divorce before the German courts. Thereafter, he returned to the Philippines where he discovered that while they were still married, the wife was having an affair with another man. Thus, he instituted a complaint for adultery against his Filipina spouse. Ruling: The legal personality to institute a criminal action for adultery should be determined at the time of the filing of the action. Since the German is governed by his own law, the divorce decree that he obtained in Germany should be considered as valid insofar as he is concerned. Consequently, by virtue of the divorce decree, he ceased to be her husband and cannot thus file a complaint for adultery. Dacasin v. Dacasin Facts:

ANS: The focus now is on the party who is ascertaining her right as a spouse. This is not the one contemplated in these three sets of cases because we are now focusing on the binding effect on the Filipino spouse. Under the nationality theory, this is not recognized. Take consideration on the rules on property, not the issue on divorce. Look at the cases where the Supreme Court recognized the validity of the divorce - Somera, Van Dorn, & Dacasin. The recognition there is really partial. It is always focused on the alien spouse because the alien spouse is governed by the nationality theory. He or she is governed by his or her national law. The only instance where the divorce is recognized in its entirety is the 2nd par, by express provision of Art. 26. Important: The only recognized divorce decree is the one obtained by alien spouse. If it were the other way around, it cannot be given any effect insofar as the Filipino spouse is concerned for being against public policy. Q. What if the divorce decree was applied for by both spouse through a joint application? The foreign spouse already remarried, but the Filipina wanted to remarry.

A Filipina spouse obtained a divorce decree abroad. Thereafter, she and her ex-husband had a contractual agreement regarding the custody of their only child. The husband thereafter went to Philippine court to enforce their contractual agreement.

ANS: Apply either the rule of strictissimi juris or liberal interpretation.

Ruling:

So, the question is which interpretation should be considered. But, if you look at the policy in divorce, it should be construed strictly because that provision in Art. 26 is an exception to our general policy on divorce. Remember in the PH, our policy is to favor the sanctity of marriage. Any doubt should be resolved in favor of marriage. Divorce is a mode of dissolving, so I should say, under the strict construction, that situation may not fall squarely under Art. 26. In effect, the Filipino spouse cannot remarry.

Van Dorn v. Romillo settled the matter by holding that an alien spouse of a Filipino is bound by a divorce decree obtained abroad. Thus, pursuant to his national law, the German spouse is no longer the husband of the Filipina. Important: The Supreme Court, in all these cases, uniformly wrote that pursuant to nationality theory, divorce is valid abroad. Since the husbands in these cases are Americans/Germans and the laws of their countries recognize the divorce decree, then they are deemed by law to be no longer the spouse of the Filipina. Questions from the class Q. Why was the Family Code (involving compulsory maternal custody) invoked if on the part of the Filipino mother, she was still married, while on the foreign husband, he was divorced?

ANS: The one who seeks to enforce the contract is a foreigner, and he is using Philippine public policy to benefit him. That is absurd. A divorce decree is obtained which applies to him as a foreigner. Q. What if it was the father who was the Filipino?

ANS: The ruling is, insofar as the Filipino spouse is concerned, the 13 | U N I V E R S I T Y O F S A N C A R L O S

On one hand, it complies with Art. 26 because the foreign spouse applied for it. On the other hand, it also violates the public policy because it was the wife who obtained it.

The rule on divorce would differ depending on who obtained the divorce. So if it was the foreigner who obtained the divorce, which capacitates him to remarry, the Filipina is also capacitated to remarry. Q. How about in cases of dual citizens? E.g. Fil-am Wife & American Husband?

ANS: The principle of dual citizenship exists only from the perspective of a third state. Insofar as Philippine law is concerned, that individual is a Filipino. If a question relates to a status of a Filipino who happens to be a dual citizen, he is considered as Filipino. That problem of dual citizenship, in reality, exists only from the perspective of a third state. For example, Mr. Gocuan was born to Filipino parents in the US. So under jus soli, he is American, and under jus sanguinis, he is Filipino. From the perspective of China, that is a problem. How will China deal?

CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017 Apply the various significant relationships, such as domicile. If you have been living in the US, by applying the effective nationality doctrine, you are American.

Q. What if the person figures into a dispute in the Philippines where the resolution of the case hinges on their gender?

Restrictions under Article 26

of the foreign law has its own limitation. It cannot be applied if it belongs to the exceptions in the application of a foreign law. In this case, it is in contravention to the public policy of the forum.

Under Article 26 of the Family Code, a Filipino spouse can only remarry so long as: (a) The divorce was obtained by the alien spouse (b) The law of the alien spouse allows him or her to remarry

Atty T: The second paragraph of Article 26 was added only at the last minute. It was not part of the original text of the Family Code. The insertion of the provision was precipitated by the ruling rendered in the case of Van Dorn v. Romillo. SC recognized the divorce decree abroad partially in the sense that it was recognized as valid only in so far as the alien spouse is concerned. Therefore, the alien spouse is free to remarry. But in so far as to the Filipino spouse, the divorce decree is not recognized by reason of public policy. Hence, the Filipino spouse cannot remarry. So in order to avoid a situation where “a Filipina remains to be the wife of a man who is no longer her husband”, Congress inserted 2nd par of Art 26, capacitating the Filipino spouse to remarry but in a restrictive situation – only when the divorce decree is obtained by the alien spouse. If a divorce decree obtained by the Filipino spouse will be recognized and will capacitate her to remarry, then it will be an overhaul of our public policy on divorce; might as well open ourselves to divorce altogether.

ANS: The trouble of nationality theory which may call for the application

Silverio v. Republic Facts: Rommel was born male but later on had a sex reassignment surgery in Thailand. She then decided to file a petition in court to achieve two things: (1) to be declared officially as female, and (2) to change his name from Rommel to Melly. Ruling: The SC dismissed the petition holding that sex classification of an individual is determined at birth and once sex is determined, this becomes immutable and can never be changed even by a sex reassignment surgery. There is no law that authorizes change of sex on the basis of sex reassignment surgery. The proper forum is not the court but with the legislative body.

Atty T: Although SC dismissed the petition, it left a promise of a future success. The SC dismissed the petition simply on the ground that there is no law in the Philippines that recognizes sex transplant as a mode of changing one’s gender. In the Philippines, we adhere to the principle of immutability of gender. Gender is determined at birth by the physical examination of one’s genitalia. The remedy here is legislation.

Important: But, if it were the other way around, in Van Dorn where the husband is managing the business in the Philippines and the wife now goes into court “I am the wife and the divorce decree does not bind me”, the decision would have been different. The Supreme Court would have said “allow her to manage the business.” We do not recognize divorce in so far as the Filipino spouse is concerned.

Q. Is same sex marriage obtained by foreigners abroad recognized under Philippine law?

Summary of rules:

Article 15, Civil Code (Nationality theory) 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.

GR: Divorce is against public policy in the Philippines. Therefore it is not recognized. XPN: If obtained by the alien spouse, pursuant to Article 26 of the Family Code, it is recognized in the sense that the Filipino spouse can remarry. Important: If the Filipino spouse was the one who obtained the divorce abroad, the divorce is valid on the part of the alien spouse (if his national law recognizes divorce), but void on the part of the Filipino spouse for being against public policy. The Filipino spouse cannot thus remarry. Rules on Same Sex Marriage and Sex Transplant Same sex marriage and sex transplant Along the principle of national law, if a person in Thailand is a transgender and surgery is a recognized valid mode of acquiring or changing one’s gender, such person’s gender should be resolved by the laws of Thailand. Philippines usually does not care about the person’s status. We leave it to their country’s law and court.

14 | U N I V E R S I T Y O F S A N C A R L O S

ANS: There may be conflicting legal positions between the nationality theory and the public policy principle. Both are equally legally correct. (Sir’s opinion)

Article 17, par 3, Civil Code (Public policy principle) 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.

CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017

Conflict Rules on Contracts Three components of a contract 1. Extrinsic validity 2. Intrinsic validity 3. Capacity of the contracting parties

TN: Each component is governed by different Conflict of Laws rule. Q. Is the contract valid?

Two kinds of lex contractus Under the principle of liberality of contracts, the policy of our State is really to give life to the intention of the parties. For purposes of Conflict of Laws rule on contracts insofar as intrinsic validity is concerned, the following shall govern: 1. Lex Loci Voluntatis The law voluntarily agreed upon by the parties through a ‘choice of law clause’.

ANS: Verify first which aspect of the contract is being assailed as invalid. A contract may be extrinsically invalid but intrinsically valid, and vice versa. It may also be that the contract is both intrinsically and extrinsically valid but the parties are also not capacitated. Still, the contract cannot be considered valid. These three components must be valid in all respects, following all the respective connecting factors.

Exceptions: a. If the stipulation is contrary to law, morals, good custom and public policy, etc. b. If the law stipulated has no relation at all to the contract. 2. Lex Loci Intentionis

Extrinsic Validity Extrinsic Validity This relates to form and solemnities of a contract, which may include: 1. 2. 3. 4.

Whether the contract is valid when it is written or orally done. Whether it is valid when it is not notarized. Whether it is valid when there are no instrumental witnesses. 4. Procedure in the execution of contract.

Atty: These are matters outside the substantive aspect of a contract. Lex Loci Celebracionis Our Conflict of Laws rule on contract as far as extrinsic validity is concerned is Lex Loci Celebrationis. 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. 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. Intrinsic Validity Intrinsic validity This relates to the substantive aspect of a contract, which may include: 1. 2. 3. 4.

Validity of the subject matter of the contract Validity of the terms and conditions of the contract The rights, duties, and liabilities of the parties under the contract Interpretation of the terms and conditions of the contract

Lex contractus While there is no specific provision in our laws that really governs intrinsic validity of a contract, it is recognized in our jurisdiction that we follow Lex Contractus, based on the general principles of contract particularly the so called ‘liberality of contracts’ under Article 1306 of the Civil Code. Article 1306, Civil Code The contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy. 15 | U N I V E R S I T Y O F S A N C A R L O S

The law impliedly agreed upon by the parties, applying the principle of Most Significant Relationship. – This is applied in the absence of lex voluntatis. Phil Guarantee v. VP Eusebio Facts: This case involves a contract with three layers of counterbonds. VP Eusebio was called upon to reimburse the third guarantor, Phil Guarantee. Phil Guarantee’s argument: All the performance bonds were validly called. VP Eusebio should be liable to reimburse the guarantor, Phil Guarantee, on the basis of its solidary undertaking. It was alleged that he incurred delay since the project was not completed within the stipulated completion period. VP Eusebio’s argument: It is not liable because it did not incur in delay. The reason for the delay is attributable not to VP Eusebio but to the Iraqi government. Therefore, since it did not incur any delay, it did not violate the terms and conditions of the agreement. The liability on the performance bond is premised on the liability of the principal contractor. If the contractor is not liable, then the guarantor is not liable. There was no basis to call on the guaranty of their performance bond. Issue: Whether the contractor, VP Eusebio, incurred delay in the performance of its obligation to construct a medical facility in Iraq, making it liable for breach of contract. Ruling: No. A conflict of law dispute was involved because this is obviously a transaction involving foreign elements. 1. The project was undertaken in Iraq. 2. The owner of the project is a foreign State. 3. The contractor is a Philippine Corporation (VP Eusebio).

CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017 The issue to be determined is the liabilities of the parties under the contract. This pertains to intrinsic validity. Therefore, the case is governed by Lex Contractus. For Lex Contractus to apply: 1. The first principle is the so-called Lex Loci Voluntatis. The Court should look for the law expressly agreed upon by the parties in their contract. 2. In the absence of any stipulation for the choice of law clause, the court should apply Lex loci intentionis referring to the law impliedly agreed upon by the parties which should be determined by the circumstances of the case, applying the so-called Most Significant Relationship rule. The project being undertaken in Iraq, the owner of the project is the Iraqi government, the significant relationship pertains to Iraq. Therefore, the law applicable is that of Iraq to determine whether the contractor committed a breach of its obligation. The problem, however, is that the applicable law of Iraq was not sufficiently proven, so the SC had to apply processual presumption and applied our internal law in obligations of contract particularly Art. 1169, Civil Code. “Art. 1169. XXX In reciprocal obligations, neither party incurs in delay if the other does not comply or is not ready to comply in a proper manner with what is incumbent upon him. From the moment one of the parties fulfills his obligation, delay by the other begins.” Applying this principle, SC made a definitive finding that the contractor may not be defaulted for the delay when in the first place the delay is attributable to Iraqi Government. The remaining portion of the project involves the mechanical and electrical component which the equipment had to be sourced from abroad and the currency used in international trade is US Dollars. But the Iraq Government paid the contractor in dinar so the contractor cannot import the equipment causing delay to the project. Intrinsic validity of the contract which may involve issue regarding liability of the parties whether there is breach of contract between the parties is governed by Lex Contractus which may either be Lex Voluntatis or Lex Intentionis.

Atty T: But this ruling has been shaken by other rulings in other cases. United Airlines v. CA Facts:

Ruling: It was error for the CA to apply the US Law because the dispute relates to a contract. The factual situation falls under COL on contracts and therefore Phil. COL rule on contract should be applied which is Lex Contractus. In applying this principle, the SC referred to the execution of the contract. The tickets which serve as the contract between the passenger and the airline were issued in the Philippines and therefore, it is in the Philippines that the contract was deemed executed. Pursuant to the Lex Contractus principle, the laws in the Phils should be applied and under Philippine law, if there is non-compliance with the check-in requirement, the airline has all the right to deny boarding to a passenger.

Atty T: This ruling is not in accord with the case of Eusebio and is contrary to Art. 17 of our Civil Code. It is already a settled doctrine that Lex contractus is the COL rule that governs the intrinsic aspect of the contract where place of execution is not a relevant factor. Place of execution is relevant only in applying Lex loci celebrationis which relates only to the extrinsic aspect. The issue of whether the airline was liable relates to the intrinsic aspect of a contract. The application of the SC in this case of the law of the place of execution is wrong. The court ruled the same in the case of: PCL Shipping Lines v. NLRC Facts: This involves a seaman who got injured in his ankle when he was cleaning the kitchen of the vessel. His request for treatment was denied by the captain so he jumped off the vessel. He was then hospitalized. After which, he was terminated by his employer so he sought for illegal termination. It was admitted that the employee was not given notice before his termination. It was argued however by the employer that in the foreign law which it invoked, notice and hearing are not required in the termination of employees. Issue: Whether there was violation of the requirement of due process in the termination of the employee. Ruling: Yes. Since the contract was executed in the Phils and with approval of the POEA, then Philippine Law applies.

Atty T: The court applied the Philippine law on contract which is Lex

This is about an airline passenger who was denied boarding by United Airlines. He was claiming that he and his family were discriminated against. They sued for damages under Philippine courts. The defense of the airline company is that the passengers did not comply with the check-in requirement. While their tickets were confirmed, the check-in requirement must still be complied with.

contractus but SC’s understanding of Lex contractus is the law of the place where the contract was executed. This is a mistake. In fact, it cannot even be argued that the matter of termination of employment is an extrinsic aspect of a contract which calls for the application of lex loci celebracionis. This is clearly an intrinsic aspect. Here, the SC was correct in designating the term lex contractus but its understanding is actually lex loci celebracionis which is wrong.

CA – There was compliance with check-in requirement but assuming that there was no compliance, such will not defeat their claim for reimbursement because of the denial of their boarding rights invoking a Federal Law (US Law). They are still entitled to demand compensation.

The jurisprudence on the matter renders these cases conflicting. The doctrine in Eusebio is more accord with the existing laws. We cannot really justify the ruling that issue of liability of the party concerns itself with extrinsic as to be governed by the law of the place where the

16 | U N I V E R S I T Y O F S A N C A R L O S

CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017 contract was executed. Liability is intrinsic and therefore not governed by lex loci celebracionis. Lex contractus does not equate with lex loci celebracionis. Most Significant Relationship The Most Significant Relationship (MSR) In the absence of any stipulation for the choice of law clause, the court should apply Lex Loci Intentionis referring to the law impliedly agreed upon by the parties which should be determined by the circumstances of the case, applying the so-called Most Significant Relationship rule.

Examples of important components of contract: 1. 2. 3. 4. 5.

Citizenship and residence of parties Place where the contract was negotiated Place where the contract was perfected Place where contract is to be performed Place where subject matter is located

TN: So an analysis of the components of contract will tell the forum court the law that parties impliedly agreed upon in entering into the contract. Important: However, in case that it is impossible to determine which law to apply or which country has the most significant relationship, you apply the law of the country where the contract shall be upheld as valid. This is consistent with the principle of liberality of contracts – the intention of the parties should be given life, and definitely they intended their contract to be valid. The MSR rule can be applied to both the extrinsic and intrinsic aspects of the contract A. Extrinsic validity GR: Extrinsic validity is governed by lex loci celebrationis or the law of the place where the contract was executed. XPN: When the place of execution was incidental only to the contract. In which case, the Most Significant Relationship rule must be applied.

Example: The parties are Japanese and Chinese. They accidentally met in Hawaii, when both of them took a short a vacation. They were in the airport of Hawaii when they suddenly entered into a contract. The place of execution is Hawaii. The oral contract was valid in Hawaii. However, if you take in to consideration other aspect or components of the transaction, nothing relates to Hawaii, except that during the execution of the contract, both of the parties happened to be in Hawaii.

Atty T: This is a case where the place of execution is incidental, meaning the place of execution has nothing to do with the contract because all other elements took place or pertain to another state. As when the parties simply happen to meet in a certain state by chance or in a vacation in which they entered to a contract and it is to be performed and all other aspects of the contract in another state. You do not apply lex loci celebrationis because the place of execution is merely incidental or casual to the contract. In this case, apply the Most Significant Relationship Principle.

17 | U N I V E R S I T Y O F S A N C A R L O S

Important: When the place of execution has no relationship at all to the contract and that the other significant components of the contract is somewhere else, such place is only incidental. B. Intrinsic validity On the other hand, intrinsic validity that calls for the application of lex voluntatis, or the law stipulated by the parties. In the absence of stipulation, you apply the lex loci intentionis (The law impliedly agreed upon) by applying the most significant relationship principle. Important: In both, extrinsic and intrinsic, the law applicable should have a relation to the transaction or subject of the contract, otherwise whether extrinsic or intrinsic, the lex loci celebrationis rule shall not apply. Lex voluntatis applies only to the intrinsic aspect of a contract If the issue is the extrinsic validity of the contract which naturally calls for the application of lex loci celebracionis, but the place of execution is merely incidental to the contract – apply Lex loci intentionis by applying the Most Significant Relationship Rule. Do not make the mistake of applying lex contractus (which could either be voluntatis or intentionis). If the issue is extrinsic validity but the place of execution is merely incidental to the contract – immediately apply lex loci intentionis or the MSR rule. Important: Lex voluntatis never applies when the issue is the extrinsic validity of a contract. Thus: (a) If extrinsic validity – either lex loci celebracionis or lex loci intentionis applying the MSR rule. (b) If intrinsic validity – lex contractus (either lex loci voluntatis or lex loci intentionis applying the MSR rule) Capacity of the Contracting Parties Nationality theory

Atty T: This third aspect of the contract relates to personal law. Under Article 15, NCC, the respective legal capacities of the parties to the contract should be determined by their respective national laws. 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. Important: Note however that the principle which provides that the legal capacity of the contracting parties should be governed by their respective national laws applies only to ordinary contracts. Q. What are ordinary contracts?

ANS: Those contracts which do not involve transfer, conveyance, sale, mortgage, etc. of a property, whether real or personal. Otherwise, lex rei sitae will apply. General rule: Nationality theory.

Example: There is contract of service with a Japanese firm to perform in a concert in the Philippines. The parties are a Japanese national and

CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017 a Filipino. When the talent fee was received by the performer, she did not show up on the night of the performance. The Japanese firm sued for breach of contract, claiming return of the talent fees. At the time the contract was entered into, one of the parties was still 16 years old. In Japan, majority age is 15, while in the Philippines, 18. The defense is lack of legal capacity to enter into that contract and therefore it cannot be enforced as she is still a minor under Philippines law. Issue: Validity of the contract in relation to the capacities of the parties.

Conflict Rules on Property Lex Rei Sitae Lex rei sitae Article 16, Civil Code Real property as well as personal property is subject to the law of the country where it is situated. xxx

Atty T: Conflict of laws rule on property is lex rei sitae. This applies whether the property is real or personal.

Apply the nationality theory – to be determined by PH law. If the Japanese’s legal capacity is disputed, apply Japanese law. Even if a minor under PH law, the party is considered legally capacitated under his own law, applying Art. 15, CC. Exception: Lex Rae Sitae under Article 16 (1) – the law where the property involved in the contract is located shall govern. Important: The nationality rule does not apply if the subject matter of the contract involves property, whether real or personal. The rule on lex rei sitae governs all the components of the contract.

Example: A contract of sale was entered between a Japanese and a Filipino involving a condominium unit located in the Philippines. The Japanese buyer refused to pay. The seller then filed for an action for specific performance to compel the Japanese to pay. The Japanese argued that the contract cannot be enforced because he is still a minor (17 years old) under Philippine law. Decide.

ANS: Since the contract involves a sale of real property in the Philippines, all the components of the contract, including the issue of legal capacity of the Japanese, is governed by lex rei sitae. Applying Philippine law therefore, he is still a minor. Important: If the issue relates to the legal capacity of the parties, determine the nature of the contract to know what law shall govern: (a) Ordinary contract - Apply the nationality theory (b) Involves property – Apply the lex rei sitae Summary of COL rules on contract Aspect of a contract

Applicable law Lex loci celebracionis

Extrinsic validity

XPN: If place of execution is merely incidental – Lex loci intentionis, applying the MSR rule

Q. When should lex rei sitae be applied?

ANS: Lex rei sitae should be applied when the issue at hand involves any of the following: (a) (b) (c) (d) (e) (f) (g)

Sale Mortgage Easement Chattel Registration of Real Estate Barter to or exchange of property All transactions involving title to or possession of real property

Important: Lex rei sitae governs all aspects of the contract involving property (intrinsic, extrinsic and legal capacity) Laurel v. Garcia Facts: This involves the controversial proposed sale of Roppongi property during the time of Pres. Cory Aquino. Her flagship program at the time was agrarian reform. Government needed to raise substantial revenue and so it thought of disposing the Roppongi property to generate funds to finance its agrarian reform program. This was opposed by certain partners as the intended sale is perceived to be a violation of the local patrimony provision enshrined in the Constitution. Laurel’s argument: Roppongi property is part of public domain intended for public service. The property was originally intended for use of PH consular offices but did not pursue due to lack of resources; invoked Art. 420 NCC, defining patrimonial property, and the general principle that properties belong to public domain is beyond the commerce of man and cannot be subject to contract, dispositions, or sale. Garcia’s argument: Art 420 is not applicable since the Roppongi property is located in Japan, referring to the principle of lex rei sitae. Issue: Whether or not Roppongi property can be validly sold.

Intrinsic validity

Lex contractus (lex loci voluntatis or lex loci intentionis

Capacity of contracting parties

Lex nationali

Exception common to all: If the contract involves property – all aspects of the contract is governed by lex rei sitae or the law of the place where the property is located.

18 | U N I V E R S I T Y O F S A N C A R L O S

Ruling: No. Interpretation of lex rei sitae is misplaced because this is not a conflict of laws problem. Lex rei sitae will only come into play when there is a dispute in ownership and title over real property. There is no issue on ownership of the Roppongi property because everyone agreed that the property belongs to the Republic of the Philippines. Moreover, the invocation of lex rei sitae is inadequate because the government did not cite the specific Japanese law on the matter. The real issue here is the authority of the government officials concerned to sell the Roppongi property as well as the procedure adopted to effect

CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017 the proposed sale. Again, issue is not on title or ownership of property.

because the properties are located in the Philippines.

Atty T: One can always argue that the issue on the authority to sell can

There was no issue as to title or ownership because the issue only revolved on the formality of the compromise agreement – whether the contract was valid if it was not authenticated and executed without witnesses.

fall under the matter of capacity. Procedure and disposition can be argued as referring to intrinsic validity. An argument can be made that although there is no issue on ownership, the issue on whether or not the officers who proposed to sell the property are really authorized to sell might be a valid concern to be governed by lex rei sitae, akin to issue of capacity. But just because the main case does not resolve itself on the question of ownership or title, all these matters are not to be governed by lex rei sitae. Situation: Ms. Siao owns a condominium unit in the Philippines. Because she stays abroad, she executed a SPA in Japan in favor of a Japanese friend. She authorized her Japanese friend to sell the property in her behalf. A contract was entered into for the sale of the condominium unit located in the Philippines to a third party. The issue revolves on whether or not the sale is valid because the one who signed the contract (the agent of the seller) has no authority – meaning SPA is not recognized in the country of the buyer for it should be the seller herself who should sign the contract. But in the Philippines, the seller may be represented by somebody duly authorized by SPA. Here, there is no issue of ownership or title. The issue is on the authority of the agent to sell the property which is located in the Philippines in behalf of the principal. Should this not be governed by lex rei sitae? Republic v. Sandigangbayan Facts: After the ouster of President Marcos, PCGG was created for the sole purpose of running after the Marcos family and those who are perceived to be cronies of the Marcoses. One of them was Benedicto. His properties which were alleged to be ill-gotten were sequestered by the PCGG. Numerous cases were filed, mostly in the United States. After years of litigation, PCGG & Benedicto agreed to a compromise. Under this compromise agreement, Benedicto undertook to cede to the government certain properties in exchange for immunity from prosecution, in his favor and his family. After this compromise agreement was approved by the Sandiganbayan, the government turned around and assailed the agreement on the ground that the compromise agreement was not duly authenticated and did not comply with the requirement of witnesses. Obviously, the government invoked the lex loci celebracionis principle because the compromise agreement was executed abroad. It can be inferred that the argument of the government was under the law there, it should be a void compromise agreement. Issue: Whether lex loci celebracionis applies. Ruling: No. While lex loci celebracionis is our conflicts rule on contracts, which means that the forms and formalities should be governed by the place where the contract was executed, this principle does not hold when the contract involves properties because what shall apply is lex rei sitae. Lex rei sitae governs all aspects of the contract. Thus, even if the issue was the extrinsic validity of the agreement, Philippine law applies 19 | U N I V E R S I T Y O F S A N C A R L O S

Applying lex rei sitae, which applies Philippine law on the matter, certain formal requirements in the execution of contract are simply for purposes of convenience and not really requirements for their validity. The fact remains that essentially the contract is valid.

Atty T: Even if a dispute does not involve ownership or title over property, if it concerns itself with matters that are governed by lex rei sitae, like formality of a contract involving property, lex rei sitae can still be applied, unless we say that authority to sell or the procedure adopted to effect the sale are not matters that fall under lex rei sitae – in reference to Laurel v. Garcia case. Important: According to sir, the case of Laurel should be circumscribed to the peculiar circumstances of the case. It should not create a precedent. We should not be misled into thinking that lex rei sitae can only be invoked if the dispute involves title or ownership of property. Situation: Mr. Gocuan and Ms. Siao entered into a contract of sale, where the property belonging to Ms. Siao is to be bought by Mr. Gocuan. Mr. Gocuan, despite signing of the contract, refused to pay. Hence, Ms. Siao went to court to enforce the contract. Suppose Mr. Gocuan argued that the contract is not enforceable between them because it is not notarized – a question that relates to the extrinsic aspect of the contract. There were no disputes as to ownership or title, but it relates only to the formality of the contract. This is to be governed by lex rei sitae.

Atty T: There is an unofficial reason for the ruling in the Laurel case. The reason is the SC does not want the Roppongi property to be disposed of. It does not want to prostitute the history between Japan and the Philippines because it was supposed to be a compensation for the suffering of the Filipinos in the hands of the Japanese during the war. It’s a national treasure. Exceptions to Lex Rei Sitae 1. If the property is only incidental to the contract Even if the contract involves property, but the property is only incidental to the contract and the main issue is the rights and liabilities of the parties, the following rules shall govern: (a) Extrinsic Validity –lex loci celebracionis (b) Intrinsic Validity –lex contractus (c) Legal Capacity – lex nationali

Example: Mr. Gocuan entered into a contract with Ms. Siao, a Chinese national, to render landscaping & gardening services in her residential house.

Atty T: This is a contract that involves property, the house, but this is not governed by lex rei sitae. The contract is really about the service to do gardening. Any dispute that may arise is governed by the rule on ordinary contracts.

CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017 2. If the issue, while involving property, concerns succession. If the dispute involves property ownership, but the root cause relates to succession – whether testate or intestate, the conflict of laws rule on succession applies. Following Article 16, 2nd par, the national law of the decedent should govern. Conflict Rules on Wills and Succession Two components of wills For purposes of conflict of laws rule, a will’s validity should be determined by two components: (a) Extrinsic Validity – Governed by lex loci celebracionis, Articles 815, 816, 817 (b) Intrinsic Validity – Governed by the nationality theory Extrinsic validity Lex loci celebracionis The rule which governs the extrinsic validity of a will is Article 17 of the Civil Code, which speaks only of one law and that is lex loci celebrationis – the law where the will was executed. Important: However, this is not the only provision that deals with the extrinsic validity of the will. Article 815, 816 and 817 of the Civil Code also deal with extrinsic validity. Rules: 1. Testator is a Foreigner A. Will executed abroad Article 816, Civil Code The will of an alien who is abroad produces effect in the Philippines if made with the formalities prescribed by the law of the place in which he resides, or according to the formalities observed in his country, or in conformity with those which this Code prescribes.

Atty T: This governs a situation where the testator is a foreigner and the will was executed abroad. Even if executed abroad, the will can be probated in the Philippines so long as the property involved is located in the Philippines. This article does not mention lex loci celebrationis. The law mentioned is that the will may be probated in the Philippines if the will is executed in accordance with the formalities under any of the following laws: (a) The law of his domicile – a person can be a domicile of one country yet a national of another. This is equated to residence. (b) The law of the country of which testator is a national (c) Philippine Law Q. What happens if the foreigner executes a will in a place other than his country, other than his domicile and other than Philippines? Is this valid? Can it be probated in the Philippines?

ANS: Yes. Follow Article 17. This applies to everyone. 20 | U N I V E R S I T Y O F S A N C A R L O S

Important: Insofar as the foreigner is concerned, there are then four possible laws that he may avail that will govern the extrinsic validity of the will, including the law of the place where the contract was executed or lex loci celebracionis. B. Will executed in the Philippines Article 817, Civil Code A will made in the Philippines by a citizen or subject of another country, which is executed in accordance with the law of the country of which he is a citizen or subject, and which might be proved and allowed by the law of his own country, shall have the same effect as if executed according to the laws of the Philippines.

Atty T: If the foreigner executes a will in the Philippines, that will may be probated in the Philippines if it is executed in accordance with the formalities prescribed under his national law and Philippine law following lex loci celebrationis. Important: You have to distinguish a situation where a foreigner executes a will abroad or in the Philippines. Because if it is executed in the Philippines, there are only two laws that he should comply with, either national law or lex loci celebrationis (Philippine law). 2. Testator is a Filipino A. Will executed abroad Article 815, Civil Code When a Filipino is in a foreign country, he is authorized to make a will in any of the forms established by the law of the country in which he may be. Such will may be probated in the Philippines.

Atty T: Article 815 is consistent with Article 17, both only speak of one law – Lex loci celebrationis. If you look at these two provisions, if the Filipino executes a will in the Philippines, Philippine law governs. If a will is executed elsewhere, its extrinsic validity should be compliant with the laws of the country where it was executed. B. Will executed in the Philippines Obviously, follow Philippine law. Q. Can a Filipino execute a will abroad using Philippine law?

ANS: At first glance, it can be argued that if a Filipino executes a will abroad in accordance with Philippine laws, it is not supposed to be probated in the Philippines since it is not extrinsically valid. Because supposedly, it is lex loci celebrationis that should be applied. Tolentino argued however that there is a bias of law towards foreigners. He is particularly concerned with the disparity and disadvantage on the part of the Filipino as to the effects of Articles 815 and 816. If you look at 816, a foreigner who executes a will abroad may follow Philippine law but 815 disallows a Filipino to avail Philippine law when he executes a will abroad. According to Tolentino, whose opinion is persuasive, it is not the intention of the Congress to invalidate the will executed by a Filipino

CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017 abroad if it complies with the formalities prescribed under Philippine laws. What he is saying is that the will executed by the Filipino abroad using Philippine laws on extrinsic validity should be probated, recognized and approved by the Philippine courts. Otherwise, a foreigner would be in a better position than a Filipino on the matter of compliance with extrinsic validity under Philippine laws.

TN: The capacity of an heir to inherent falls under intrinsic validity, therefore governed by the national law of the decedent. Important: This is under Article 1039, not Article 16 par 2 because the latter article only mentions three items, and capacity of the heir to inherit is not one of them, but still included anyway since it is included by the express provision of Article 1039.

Atty T: Tolentino is right. The adequate solution here is legislation. However, I wonder why up to now, not a single right-minded Congressman bothered to formalize the opinion of Tolentino. This provision has never been amended. But this opinion has been well received. This came out in the bar and the suggested answer was to adopt Tolentino’s answer. We are safe with Tolentino if we invoke Tolentino. Summary on Conflict Rules on Extrinsic Validity

The capacity of the testator is not one of those mentioned under Article 16 nor under Article 1039.

concerned, capacity of the parties to enter into a contract is governed by his national law.

A. Will executed abroad National law Law of domicile Philippine law Lex loci celebracionis (Art. 17)

B. Will executed in the Philippines (a) National law (b) Lex loci celebracionis If testator is a Filipino

Q. So what law governs the capacity of the testator?

ANS: One school of thought states that the capacity of the testator to make a will is subsumed under the concept of extrinsic validity and therefore the law that must govern is what governs the extrinsic validity of the will. (The problem is, what is that law?) Some writers jump into conclusion that it should be lex loci celebracionis pursuant to Article 17. However, there are other laws governing the extrinsic validity of the will – Articles 815, 816, 817, which do not necessarily involve lex loci celebracionis.

Example: If a German national executes a will in Colombia (his place of

A. Will executed abroad (a) National law (b) Lex loci celebracionis B. Will executed in the Philippines (a) Philippine law Intrinsic validity Nationality Theory Article 16, 2nd par. xxx 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.

Atty T: Intrinsic validity of wills is governed by Nationality Theory. This is enshrined in the 2nd paragraph of Article 16 on testate and intestate succession. Important: National law of the decedent, not national law of the heir. Matters under intrinsic validity 1. 2. 3. 4.

Capacity of the testator

Atty T: Ordinarily, this is not extrinsic, because insofar as contract is

If testator is a Foreigner

(a) (b) (c) (d)

Article 1039, Civil Code Capacity to succeed is governed by the law of the nation of the decedent.

Order of succession Amount of successional rights Intrinsic validity of testamentary provisions Capacity of an heir to inherit (Article 1039)

21 | U N I V E R S I T Y O F S A N C A R L O S

domicile), but following the laws of the Philippines, under Article 816, such is a valid will. The validity of the extrinsic aspect of the will is determined by Philippine law, but that is not the lex loci celebracionis, the will being executed in Colombia. Therefore, it cannot be argued that the law of Colombia determines the capacity of the testator, when that testator follows the laws of the Philippines in executing the will in Columbia. Important: Again, this is not accurate since lex loci celebracionis is not the only law recognized in the Philippines as the law that determines extrinsic validity. If we are to say that legal capacity of the testator is subsumed in the context of extrinsic validity, then all the laws allowed under our laws for purposes of extrinsic validity should also apply. Q. How to harmonize?

ANS: To harmonize, if we were to say that capacity of the testator is to be governed by the law that governs extrinsic validity, then the other laws allowed, aside from lex loci celebracionis, so long as they are appropriate in the given circumstances, should be the determining law. Thus, if a Puerto Rican citizen executed a will in Japan following Philippine law, Philippine law, even if it is not the lex loci celebracionis should govern all aspects of extrinsic validity of the will, including the legal capacity of the testator. Otherwise, an absurd situation would result where his legal capacity is determined by the law of the place where the will was executed (Japan), but the extrinsic validity of the will follows the Philippine law, which is

CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017 not the lex loci celebracionis. There will be two laws governing the extrinsic validity of the will (one for formalities, one for capacity).

When the elements of authenticity are duly established, then the will is approved because it is extrinsically valid.

Laws governing legal capacity of the testator

Important: The capacity of the testator to make a will is an extrinsic validity issue (not intrinsic).

Important: Since legal capacity of the testator falls under extrinsic validity, the same rules apply as those discussed under the topic on extrinsic validity.

For purposes of determining the law governing a will executed abroad, we shall refer to Arts. 17, 815, 816 & 817 of NCC.

If testator is a Foreigner A. Will executed abroad (a) (b) (c) (d)

Foreign will probated abroad

National law Law of domicile Philippine law Lex loci celebracionis (Art. 17)

B. Will executed in the Philippines (a) National law (b) Lex loci celebracionis If testator is a Filipino

It is not enough that one should prove that the testator is of sound mind and it is done voluntarily. One should also prove the foreign law applicable to its extrinsic validity using Rule 132, Sections 24 and 25.2 This is the rule when the will is probated abroad first. The probated will under foreign law should undergo reprobation in the Philippines. Types of probate of foreign wills 1. Foreign will is probated for the first time in the Philippines. 2. Foreign will is reprobated in the Philippines. Requirements to Probate a Will

C. Will executed abroad (a) National law (b) Lex loci celebracionis D. Will executed in the Philippines (a) Philippine law

Probate of Wills Probate, defined

Book: It is the process of proving before a competent court the due execution of a will, that the testator was possessed with testamentary capacity, and the approval by the court of the said will.

1. Jurisdictional facts, i.e. death of testator 2. The fact that the testator left a will 3. The fact that the testator resides in a place over which the RTC acting as probate court has jurisdiction or if the testator does not reside in the Philippines, the fact that the testator left properties in the place where the court exercises its jurisdiction.

Atty T: Whether it is probate for the first time or reprobate, the only issue there is the genuineness and due execution of the will, which essentially refers to the fact that the testator was of sound and disposing mind at the time he executed the will, that he freely and voluntarily executed the same, and that the will was executed in accordance with the formalities required for extrinsic validity.

No will shall pass either real or personal property unless it is proved and allowed in accordance with the Rules of Court.

In other words, probate deals with the extrinsic validity of the will. If the will is found to be extrinsically valid, then the court will approve it. The intrinsic validity is only implemented after its approval.

Important: The law of the forum shall apply because probate is procedural in nature.

Foreign will probated for the first time in the Philippines

Probate concerns the extrinsic validity of the will The concern in a probate proceeding is the authenticity of the will. Rules 75 and 77 of the Rules of Court are applicable. Probate does not concern with the intrinsic validity, although the determination of the intrinsic validity of the will would come out as a matter of course as soon as the extrinsic aspect is proven by the order of proving the will. Q. When is a will considered authentic?

ANS: 1. When the testator is of sound mind at the time he executed the will 2. When the execution of the will is done voluntarily 3. When the formalities of the will is executed in accordance with the law of the place of execution.

2

Refer to page 9 of this reviewer for the codal provisions

22 | U N I V E R S I T Y O F S A N C A R L O S

Requirements: 1. Prove the foreign law which provides the formalities for the extrinsic validity of the will (this is the only foreign law that needs to be proven) 2. Present witness to prove the genuineness and due execution of the will. Hence, one must bring in all the witnesses to testify in court which is costly. Foreign will reprobated in the Philippines

Requirements: 1. Prove the genuineness and the due execution of the judgment of the court approving that foreign will. How? By presenting a publication of the decision or the certified copy of the decision duly authenticated as provided under Secs 24

CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017 and 25 of Rule 132.2.

4. Article 38 The following marriages shall be void from the beginning for reasons of public policy:

2. The court approving the will must have jurisdiction over the probate proceeding.

a) Between collateral blood relatives whether legitimate or illegitimate, up to the fourth civil degree b) Between step-parents and step-children c) Between parents-in-law and children-in-law d) Between the adopting parent and the adopted child e) Between the surviving spouse of the adopting parent and the adopted child f) Between the surviving spouse of the adopted child and the adopter g) g) Between an adopted child and a legitimate child of the adopter h) Between adopted children of the same adopter, and i) Between parties where one, with the intention to marry the other, killed that other person's spouse, or his or her own spouse.

3. Proponent needs to prove the procedure on probate in the foreign country where the foreign will was probated.

TN: This is different from the laws prescribing the extrinsic validity of the will.

Atty T: Reprobate is less costly because it dispenses with the requirement of presentation of witnesses. However, the requirement of proof foreign law is more burdensome. In the sense that you need to prove more foreign laws than the laws you need to prove when the will is probated for the first time in the Philippines. Also, in practice, it is more difficult to prove foreign law especially when the system of law in other country is different from ours like in England which follows the common law system. Conflict Rules on Marriage Article 26, Family Code 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), 36, 37 and 38. 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.

Kinds of marriages under Article 26

Atty T: Based on our lex loci celebracionis principle relating to conflict of laws rule on marriage, we need to distinguish five kinds of marriage for purposes of Article 26. 1. 2. 3. 4. 5.

Marriage Marriage Marriage Marriage Marriage

between between between between between

Filipinos abroad Foreigners abroad Foreigners in the Philippines a Foreigner and a Filipino in the Philippines a Foreigner and Filipino abroad

Between Filipinos abroad Lex loci celebracionis The Conflict of Laws Rule on Marriage is Article 26. Lex loci celebracionis. If marriage is valid abroad, it should be valid in the Philippines, except if it falls under the exceptions. Exceptions:

Situation: Filipino + Filipino = married abroad Rule: Lex loci celebracionis applies. If it is valid in the place of execution, then it is valid in the Philippines, unless it falls under the listed exceptions.

1. Article 35, paragraphs 1, 4, 5, and 6 a) Those contracted by any party below eighteen years of age even with the consent of parents or guardians b) Those bigamous or polygamous marriages not failing under Article 41 c) Those contracted through mistake of one contracting party as to the identity of the other; and d) Those subsequent marriages that are void under Art 53. 2. Article 36 of the Family Code A marriage contracted by any party who, at the time of the celebration, was psychologically incapacitated to comply with the essential marital obligations of marriage, shall likewise be void even if such incapacity becomes manifest only after its solemnization. 3. Article 37 of the Family Code Marriages between the following are incestuous and void from the beginning, whether relationship between the parties be legitimate or illegitimate: a) Between ascendants and descendants of any degree; and b) Between brothers and sisters, whether of the full or half blood. 23 | U N I V E R S I T Y O F S A N C A R L O S

Between Foreigners abroad Situation: Foreigner + Foreigner = married abroad Rule: Lex loci celebracionis applies. If it is valid in the place of execution, then it is valid in the Philippines. Q. But do the exceptions apply?

ANS: There is a seeming conflict here. (This will be answered later) Illustrations: 1. Marriage in Germany between 17 year old Germans. Suppose the marriage is between two German nationals in Germany who are both 17 years old. In Germany, 15 is the age of majority. The marriage is thus valid in Germany. Under Article 26 following lex loci celebracionis, if valid in the place of execution or celebration, then also valid in the Philippines. But do the exceptions apply? Because one of the exceptions is if either

CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017 one of the parties is below 18, the marriage is void, even if valid abroad.

Between a Foreigner and a Filipino in the Philippines Situation: Foreigner + Filipino = married in the Philippines

Obviously, if the exceptions in Article 26 are to be applied to foreigners, then the marriage is void in the Philippines. 2. Marriage in the Philippines between 17 year old Germans. But let’s tweak the facts a little. Essentially same facts as above, only that the marriage was solemnized in the Philippines. So marriage in the Philippines between 17 year old German nationals. Is it valid?

ANS: Yes. The law in the Philippines on marriage involving foreigners is lex loci celebracionis but their legal capacity should be governed by nationality theory. Since they are German nationals and in Germany they are of age, then they are deemed to be legally capacitated, and the marriage in the Philippines should be valid.

Rules: A. Lex loci celebracionis applies (Philippine law), but B. Nationality theory governs the legal capacity of the foreigner Important: Under Article 21 the Family Code, if a party to a marriage is a foreigner, instead of submitting birth certificate or baptismal certificate, he is required to submit a certificate of legal capacity from his respective consular official. The foreigner’s government will certify that their national is legally capacitated to marry under their laws. Thus, it is legal for a minor who is a foreigner to contract marriage in the Philippines if under his foreign law, he is legally capacitated, by express provision of Article 21. Between a Foreigner and a Filipino abroad

Important: Taking into considerations the two situations presented, this will result in an obvious absurdity, as when the marriage of two German nationals solemnized in the Philippines is valid, but is void if that same marriage is solemnized in their own country.

Situation: Foreigner + Filipino = married abroad

Atty T: In other words, if the marriage was solemnized in the Philippines,

Example: The marriage between a Filipina and a German, both are 17,

we honor and recognize their national law concerning legal capacity, but if the marriage was celebrated in their own country, we do not. That is absurd. Q. So going back to the question of ‘do the exceptions apply to foreigners?’

ANS: No. According to Agpalo, the exceptions under Article 26 apply only to Filipino citizens. This is true because if you look at all the exceptions, they refer to status, condition and legal capacity. Under Article 15, these are all governed by nationality theory. Important: Thus, marriage between foreigners abroad, if valid in the place of celebration, is valid in the Philippines, even if void under the exceptions.

Atty T: The only exception according to Sempio Dy in her book is when the marriage is universally recognized as incestuous (Article 37). But with respect to the rest of the exceptions – they do not apply to foreigners. Between Foreigners in the Philippines Situation: Foreigner + Foreigner = married in the Philippines Rules: A. Lex loci celebracionis applies (Philippine law), but B. Nationality theory governs the legal capacity of the parties

Example: If the marriage between the two Germans were solemnized in the Philippines, such will be valid since legal capacity is governed by the German Laws under the Nationality Theory. Therefore, the marriage will be valid.

Atty T: The problem lies here.

was solemnized in Germany. Under German Law, the age of majority is 15. Applying lex loci celebracionis rule, since it is valid in Germany, it should be valid in the Philippines. However, it falls under one of the exceptions – because the Filipina is below 18. Two different views: 1. Marriage is indivisible. The marriage is void because the Filipina is below 18, which falls under the exceptions to Article 26. 2. Marriage is divisible. The marriage is valid as to the German but void as to the Filipina. Taking cue from the divorce argument, marriage can be viewed in a divisible manner. This would in effect create a Hybrid Marriage – partly valid, partly void. Q. How do we treat this kind of marriage?

ANS: According to Paras, in such a case, we have to adopt the policy of the Philippines which favors validity of marriage. In fact, validity of marriage is presumed. This kind of marriage should be considered valid. Important: Up to now, it has never been resolved. Just be aware of the conflicting views. Sir will not ask us to pick one. Just take a position and defend it with all your heart! Q. Is same sex marriage between two foreigners abroad valid?

ANS: It does not fall under any of the exceptions in Article 26. Applying lex loci celebracionis, it can be valid. Article 15 (Nationality Theory) also supports the validity of same sex marriage. Important: The contrary argument is the public policy argument under Article 17, par 3. Jurisprudence has constantly ruled in favor of public policy over the nationality theory or lex loci celebracionis rules. Bank of America v. American Realty, Cadalin v. POEA, WN Construction cases have ruled that even if foreign law is applicable, but if such foreign law

24 | U N I V E R S I T Y O F S A N C A R L O S

CONFLICT OF LAWS l Midterm Reviewer l Atty. Joseph Randi Torregosa l For the exclusive use of EH 404 AY 2016-2017 contravenes public policy, it must not be applied.

Nullity of Marriage and Legal Separation

Article 17 par. 3, Civil Code (Public policy argument) 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.

Nullity of marriage

Atty T: The same argument can be made to defeat the argument

Rules:

involving gender realignment. On the point of his foreign law, his present realigned gender should be recognized. But there is always public policy countering that argument. In Silverio v. CA, there is no law that recognizes realignment of gender through surgery. The remedy is legislative, not judicial. Q. Why should the public policy argument overrule the principle of sovereign equality of States? If a sovereign state recognizes you are female, why should our public policy argument overrule their sovereignty?

ANS: You can argue that way but that is not the prevailing sentiment in the Supreme Court. The seat of the discussion is Philippine jurisdiction. We are really more on public policy based on literature and jurisprudence. Q. What if there are two foreigners, one of whom is a transwoman considered legally female in the country of origin, can they legally marry here in the Philippines?

ANS: What must first be resolved is her capacity, if she is male or female here. The transwoman was born male but realigned to female. If we are to apply public policy, we cannot recognize that the transwoman is female because she was born male. If the nationality theory is to be used, we can recognize that she is indeed female. The Supreme Court never resolved this with finality so we can never say which is which. But the prevailing doctrine leans toward public policy. It’s a very gray area.

Literature on the matter has it, that for purposes of nullity of marriage, we also apply lex loci celebracionis, which is what governs marriage rules. The grounds for nullity must be determined by the laws of the country where it was solemnized and apply the exceptions (Articles 35 (1) (4) (5) (6), 36, 37, 38) which shall be used to nullify the marriage.

A. If the parties are Filipinos whose marriage was solemnized abroad and should they seek nullity of their marriage in the Philippines, the grounds available are those provided for by the laws where the marriage is solemnized, and those provided in the Philippines (those falling under the exceptions) B. If the parties are foreigners, the only grounds available are those provided for by the laws where the marriage is solemnized. Legal Separation Apply the Nationality Theory. Important: Don’t apply lex loci celebracionis because the issue here does not have anything to do with marriage because the marriage still exists. The rules applicable are the rules on status, and thus determined by nationality theory. In case of a petition for legal separation, the grounds that must be used are those grounds provided for in the national law of the party involved which governs his or her legal capacity.

Example: If German spouses celebrated their marriage in Hongkong, but seeks legal separation in the Philippines, the grounds that must be used are those found in German laws. -END-

Q. Isn’t it a generally accepted principle that if an issue has been adjudicated with finally, it will be binding in this forum?

ANS: The case of Fujiki case states that a foreign judgment rendered in a foreign court is prima facie evidence but our court will still determine whether or not it is consistent with our public policy. Foreign decisions are still subject to public policy consideration. There are instances where the court should apply internal law, and one of those instances when the case falls under the exception of the application of the foreign law (as when the latter is against public policy)

TN: In controversial issues, Sir will not ask which side is correct. He will only ask us to pick a side and support it.

25 | U N I V E R S I T Y O F S A N C A R L O S