bar q_conflict of laws

8/6/2019 Bar Q_Conflict of Laws

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CONFLICT OF LAWS

Appilicable Laws; lawsgoverning contracts (1992)X and Y entered into acontract in Australia,whereby it wasagreed that X would build acommercial building for Y in

thePhilippines, and in paymentfor the construction, Y willtransfer and convey his

cattle ranch located in theUnited


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States in favor of X. What

law would govern: a) Thevalidity of the contract? b)The performance of thecontract?c) The consideration of thecontract?SUGGESTED ANSWER:

(a) The validity of thecontract will be governed byAustralianlaw, because the validity

refers to the element of themakingof the contract in this case.


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(Optional Addendum:"...

unless the parties agreed tobebound by another law".} (b) The performance will begoverned by the law of thePhilippines where thecontract is to be performed.

(c) The consideration will begoverned by the law oftUhnei t ed States where theranch is located. (Optional

Addendum:


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In the foregoing cases, when

the foreign law would apply,theabsence of proof of thatforeign law would renderPhilippine lawapplicable under the "eclectictheory".)

Applicable Laws; Arts 15,16 & 17 (1998)Juan is a Filipino citizenresiding in Tokyo, Japan.

State whatlaws govern:


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1 His capacity to contract

marriage in Japan, [ 1%]2 His successional rights asregards his deceasedFilipino father's property inTexas, U.S.A. [1%]3 The extrinsic validity of thelast will and testament

which Juan executed whilesojourning in Switzerland.[2%]4 The intrinsic validity of said

will. (1%)SUGGESTED ANSWER:


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1. Juan's capacity to contract

marriage isgoverned by Philippine law -i.e., the Family Code -pursuantto Art. 15, Civil Code, whichprovides that our lawsrelating

to, among others, legalcapacity of persons arebinding uponcitizens of the Philippines

even though living abroad.SUGGESTED ANSWER:


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2. By way of exception to the

general rule of lex rei sitaeprescribed by the rstparagraph of Art. 16. CivilCode, aperson's successional rightsare governed by the nationallaw

of the decedent (2nd par..Art. 16). Since Juan'sdeceasedPage 13 of 119CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)


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father was a Filipino citizen,

Philippine law governsJuan'ssuccessional rights.ANOTHER ANSWER:2. Juan's successional rightsare governed by Philippinelaw,

pursuant to Article 1039 andthe second paragraph ofArticle16, both of the Civil Code.

Article 1039, Civil Code,provides


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that capacity to succeed

shall be governed by the"law of thenation" of the decedent, i.e..his national law. Article 16provides in paragraph twothat the amount ofsuccessional

rights, order of succession,and intrinsic validity oftestamentary successionshall be governed by the

"nationallaw" of the decedent who isidentied as a Filipino in the


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present problem.

SUGGESTED ANSWER:3. The extrinsic validity ofJuan's will is governed by (a)Swiss law, it being the lawwhere the will was made(Art. 17.1st par. Civil Code), or (b)

Philippine law, by implicationfrom the provisions of Art.816, Civil Code, which allowseven an alien who is abroad

to make a will in conformitywith our Civil Code.SUGGESTED ANSWER:


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4. The intrinsic validity of his

will is governed by Philippinelaw, it being his national law.(Art. 16, Civil Code)Applicable Laws; Arts 15,16, 17 (2002)Felipe and Felisa, bothFilipino citizens, were

married inMalolos, Bulacan on June 1,1950. In 1960 Felipe went tothe

United States, becoming aU.S. citizen in 1975. In 1980they


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obtained a divorce from

Felisa, who was duly notiedof theproceedings. The divorcedecree became nal underCalifornia Law. Coming backto the Philippines in 1982,Felipe married Sagundina, a

Filipino Citizen. In 2001,Filipe,then domiciled in LosAngeles, California, died,

leaving one


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child by Felisa, and another

one by Sagundina. He left awillwhich he left his estate toSagundina and his twochildren andnothing to Felisa. Sagundinales a petition for the probate

ofFelipe s will. Felisa questionsthe intrinsic validity of thewill,

arguing that her marriage toFelipe subsisted despite the


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divorce obtained by Felipe

because said divorce is notrecognized in thePhilippines. For this reason,she claims thatthe properties and thatSagundina has nosuccessional rights.

A. Is the divorce secured byFelipe in Californiarecognizable and valid in thePhilippines? How does it

affectFelipe s marriage to Felisa?Explain. (2%).


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B. What law governs the

formalities of the will?Explain.(1%)C. Will Philippine law governthe intrinsic validity ofthe will? Explain. (2%)SUGGESTED ANSWER:

A. (1.) The divorce securedby Felipe in California isrecognizable and valid in thePhilippines because he was

no


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longer a Filipino at that time

he secured it, Aliens mayobtaindivorces abroad which maybe recognized in thePhilippinesprovided that they are validaccording to their national

law(Van Dorn V. Romillo, Jr.,139 SCRA 139 [1985]; Quitav.

Court of Appeals, 300 SCRA406 [1998]; Llorente v. Courtof


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Appeals, 345 SCRA 595

[2000] ).(2). With respect to Felipethe divorce is valid, but withrespect to Felisa it is not.The divorce will notcapacitateFelisa to remarry because

she and Felipe were bothFilipinosat the time of their marriage.However, in DOJ Opinion

No.


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134 series of 1993, Felisa is

allowed to remarry becausetheinjustice sought to becorrected by Article 26 alsoobtains inher case.SUGGESTED ANSWER:

B. The foreigner whoexecutes his will in thePhilippines mayobserved the formalities

described in:1. The Law of the country ofwhich he is a citizen under


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Article 817 of the New Civil

Code, or2. the law of the Philippinesbeing the law of the place ofexecution under Article 17 ofthe New Civil Code.SUGGESTED ANSWER:C. Philippine law will not

govern the intrinsic validity ofthewill. Article 16 of the NewCivil Code provides that

intrinsic


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validity of testamentary

provisions shall be governedby theNational Law of the personwhose succession is underconsideration. California lawwill govern the intrinsicvalidity

of the will.Applicable Laws; Capacityto Act (1998)Francis Albert, a citizen and

resident of New Jersey,U.S.A.,


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under whose law he was still

a minor, being only 20 yearsofage, was hired by ABCCorporation of Manila toserve for twoyears as its chief computerprogrammer. But after

serving foronly four months, heresigned to join XYZCorporation,

which enticed him by offeringmore advantageous terms.His


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rst employer sues him in

Manila for damages arisingfrom thebreach of his contract ofemployment. He sets up hisminorityas a defense and asks forannulment of the contract on

thatground. The plaintiff disputesthis by alleging that since thecontract was executed in the

Philippines under whose lawthe


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age of majority is 18 years,

he was no longer a minor atthetime of perfection of thecontract.1 Will the suit prosper? [3%]2 Suppose XYZ Corporationis impleaded as a

codefendant,what would be the basis ofits liability, if any?[2%]

SUGGESTED ANSWER:1. The suit will not prosperunder Article 15, Civil Code,


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New Jersey law governs

Francis Albert's capacity toact, beinghis personal law from thestandpoint of both hisnationalityand his domicile. He was,therefore, a minor at the time

heentered into the contract.ALTERNATIVE ANSWER:1. The suit will not prosper.

Being a U.S. national,Albert's


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capacity to enter into a

contract is determined by thelaw ofthe State of which he is anational, under which he tostill aminor. This is in connectionwith Article 15 of the Civil

Codewhich embodies the saidnationality principle of lexpatriae.

While this principle intendedto apply to Filipino citizens


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under that provision, the

Supreme Court in Recto v.Hardenis of the view that the statusor capacity of foreigners is tobedetermined on the basis ofthe same provision or

principle,i.e., by U.S. law in thepresent problem.CIVIL LAW Answers to the

BAR as Arranged by Topics (Year 1990-2006)


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persons is governed by the

law of his nationality,capacityPlaintiffs argument does nothold true, because status orcapacity is not determined bylex loci contractus but by lexpatriae.

ANOTHER ANSWER:1. Article 17 of the Civil Codeprovides that the forms andsolemnities of contracts, wills

and other public instruments


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shall be governed by the

laws of the country in whichthey areexecuted.Since the contract ofemployment was executed inManila,Philippine law should govern.

Being over 18 years old andnolonger a minor according toPhilippine Law, Francis

Albert


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can be sued. Thus, the suit

of ABC Corporation againsthimfor damages will prosper.SUGGESTED ANSWER:2. XYZ Corporation, havingenticed Francis Albert tobreak

his contract with the plaintiff,may be held liable fordamagesunder Art. 1314, Civil Code.

ALTERNATIVE ANSWER:2. The basis of liability ofXYZ Corporation would be


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Article 28 of the Civil Code

which states that: "Unfaircompetition in agricultural,commercial, or industrialenterprises or in laborthrough the use of force,intimidation,deceit, machination or any

other unjust, oppressive orhighhanded method shallgive rise to a right of actionby the

person who thereby suffersdamage."ANOTHER ANSWER:


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2. No liability arises. The

statement of the problemdoes notin any way suggest intent,malice, or even knowledge,on thepart of XYZ Corporation asto the contractual relations

between Albert and ABCCorporation.Applicable Laws; Capacityto Buy Land (1995)

3. What law governs thecapacity of the Filipino to buythe


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land? Explain your answer

and give its legal basis.SUGGESTED ANSWER:Philippine law governs thecapacity of the Filipino to buytheland. In addition to theprinciple of lex rei sitae given

above.Article 15 of the NCCspecically provides thatPhilippine

laws relating to legalcapacity of persons arebinding upon


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citizens of the Philippines no

matter where they are.Applicable Laws; Capacityto Contract (1995)2. What law governs thecapacity of the Japanese tosell theland? Explain your answer

and give its legal basis.SUGGESTED ANSWER:Japanese law governs thecapacity of the Japanese to

sell the


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land being his personal law

on the basis of aninterpretationof Art. 15, NCC.ALTERNATIVE ANSWERS;a) Since capacity to contractis governed by the personallaw

of an individual, theJapanese seller's capacityshould begoverned either by his

national law (Japanese law)or by the


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law of his domicile,

depending upon whetherJapan followsthe nationality or domiciliarytheory of personal law for itscitizens.b) Philippine law governs thecapacity of the Japanese

ownerin selling the land. While as ageneral rule capacity ofconcerning transactions

involving property is anexception.


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Under Article 16 of the NCC

the capacity of persons intransactions involving title toproperty is governed by thelawof the country where theproperty is situated. Sincethe

property is in the Philippines,Philippine law governs thecapacity of the seller.Applicable Laws; capacity

to succeed (1991)


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Jacob, a Swiss national,

married Lourdes, a Filipina,in Berne,Switzerland. Three yearslater, the couple decided toreside inthe Philippines. Jacobsubsequently acquired

severalproperties in the Philippineswith the money he inheritedfrom his parents. Forty years

later. Jacob died intestate,and is


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survived by several

legitimate children and dulyrecognizedillegitimate daughter Jane, allresiding in the Philippines.(a) Suppose that Swiss lawdoes not allow illegitimatechildren

to inherit, can Jane, who is arecognized illegitimate child,inherit part of the propertiesof Jacob under Philippine

law?


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(b) Assuming that Jacob

executed a will leavingcertainproperties to Jane as herlegitime in accordance withthe lawof succession in thePhilippines, will such

testamentarydisposition be valid?SUGGESTED ANSWER:A. Yes. As stated in the

problem. Swiss law does notallow


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illegitimate children to inherit

Hence, Jane cannot inherittheproperty of Jacob underPhilippine law.SUGGESTED ANSWER:B. The testamentarydisposition will not be valid if

it wouldcontravene Swill law;otherwise, the dispositionwould be

valid. Unless the Swiss lawis proved, it would bepresumed


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to be the same as that of

Philippine law under theDoctrine of Processual Presumption.Applicable Laws; contractscontrary to public policy(1996)Alma was hired as a

domestic helper in Hongkongby theDragon Services, Ltd.,through its local agent. She

executed a


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standard employment

contract designed by thePhilippineOverseas WorkersAdministration (POEA) foroverseasFilipino workers. It providedfor her employment for one

year at a salary of US$1,000.00 a month. It wassubmitted toand approved by the POEA.

However, when she arrivedin


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Hongkong, she was asked to

sign another contract byDragonServices, Ltd. which reducedher salary to only US$600.00amonth. Having no otherchoice, Alma signed the

contract butwhen she returned to thePhilippines, she demandedpayment

of the salary differential ofUS$400.00 a month. BothDragon


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Services, Ltd. and its local

agent claimed that thesecondcontract is valid under thelaws of Hongkong, andthereforebinding on Alma. Is theirclaim correct? Explain.

SUGGESTED ANSWER:Their claim is not correct. Acontract is the law betweenthe

parties but the law candisregard the contract if it iscontrary


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to public policy. The

provisions of the 1987Constitution onthe protection of labor andon social justice (Sec. 10. ArtII)embody a public policy of thePhilippines. Since the

application of Hongkong lawin this case is in violation ofCIVIL LAW Answers to the BAR as Arranged by Topics

(Year 1990-2006) that public policy, theapplication shall be


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disregarded by Court of

Appeals (G.R No. 104235,Nov. 10, 1993) theour Courts. (Cadalin v.POEA. 238 SCRA 762)ALTERNATIVE ANSWERS;a) Their claim is not correct.Assuming that the second

contract is binding underHongkong law, such secondcontract is invalid underPhilippine law which

recognizes as


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valid only the rst contract.

Since the case is beinglitigated inthe Philippines, thePhilippine Court as the forumwill notenforce any foreign claimobnoxious to the forum's

publicpolicy. There is a strongpublic policy enshrined in ourConstitution on the

protection of labor.Therefore, the


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second contract shall be

disregarded and the rstcontract willbe enforced. (Cadalin v.POEA, 238 SCRA 762) .b) No, their claim is notcorrect. The second contractexecuted in Hongkong,

partakes of the nature of awaiver thatis contrary to Philippine lawand the public policy

governingFilipino overseas workers.Art. 17, provides that our


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prohibitive laws concerning

persons, their acts, or theirproperty or which have fortheir object public order,publicpolicy and good customsshall not be renderedineffective by

laws or conventions agreedupon in a foreign country.Besides,Alma's consent to the

second contract was vitiatedby undue


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inuence, being virtually

helpless and under nancialdistressin a foreign country, asindicated by the given factthat shesigned because she had nochoice. Therefore, the

defendantsclaim that the contract isvalid under Hongkong lawshould be

rejected since under theDOCTRINE OF PROCESSUAL


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PRESUMPTION a foreign

law is deemed similar oridenticalto Philippine law in theabsence of proof to thecontrary, andsuch is not mentioned in theproblem as having been

adduced.Applicable Laws;Contracts of Carriage(1995)

On 8 December 1991Vanessa purchased from theManila


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ofce of Euro-Aire an airline

ticket for its Flight No. 710from Dallas to Chicago on 16January 1992. Her ightreservation was conrmed.On her scheduled departureVanessa checked in on timeat the Dallas airport.

However, atthe check-in counter shediscovered that she waswaitlisted

with some other passengersbecause of intentional


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overbooking, a Euro-Aire

policy and practice. Euro-Alreadmitted that Vanessa wasnot advised of such policywhenshe purchased her planeticket. Vanessa was only

able to ytwo days later by takinganother airline.Vanessa sued Euro-Aire in

Manila for breach of contractand


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damages. Euro-Aire claimed

that it cannot be held liablefordamages because itspractice of overbookingpassengers wasallowed by the U.S. Code ofFederal Regulations.

Vanessa onthe other hand contendedthat assuming that the U.S.Code

of Federal Regulationsallowed Intentionaloverbooking, the


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airline company cannot

invoke the U.S. Code on thegroundthat the ticket was purchasedin Manila, hence, Philippinelawshould apply, under whichVanessa can recover

damages forbreach of contract ofcarriage. Decide. Discussfully.

SUGGESTED ANSWER:


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Vanessa can recover

damages under Philippinelaw for breachof contract of carriage,Philippine law should governas thelaw of the place where theplane tickets were bought

and thecontract of carriage wasexecuted. In Zalamea v.Supreme Court applied

Philippine law in recovery ofdamages


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for breach of contract of

carriage for the reason that itis thelaw of the place where thecontract was executed.ALTERNATIVE ANSWER:If the violation of the contractwas attended with bad faith,

there is a ground to recovermoral damages. But sincetherewas a federal regulation

which was the basis of theact


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complained of, the airline

cannot be in bad faith.Hence, onlyactual damages can berecovered. The same is truewithregards to exemplarydamages.

Applicable Laws; LaborContracts (1991)A. The Japan Air Lines (JAL),a foreigner corporation

licensed to do business inthe Philippines, executed inManila


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a contract of employment

with Maritess Guapa underwhichthe latter was hired as astewardess on the aircraftying theManila-Japan-Manila route.The contrast specically

providesthat (1) the duration of thecontract shall be two (2)years, (2)

notwithstanding the aboveduration, JAL may terminatethe


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agreement at any time by

giving her notice in writingten (10)days in advance, and (3) thecontract shall be construedasgoverned under and by thelaws of Japan and only the

courtin Tokyo, Japan shall havethe jurisdiction to considerany

matter arising from orrelating to the contract.


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JAL dismissed Maritess on

the fourth month of heremployment without givingher due notice. Maritess thenleda complaint with the LaborArbiter for reinstatement,backwages and damages.

The lawyer of JAL contendsthatneither the Labor Arbiter norany other agency or court in

the


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Philippines has jurisdiction

over the case in view of theaboveprovision (3) of the contractwhich Maritess voluntarilysigned. The contract is thelaw between her and JAL.Decide

the issue.B. Where under a State'sown conicts rule thatdomestic law

of another State shouldapply, may the courts of theformer


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nevertheless refuse to apply

the latter? If so, under whatcircumstance?SUGGESTED ANSWER:A, Labor Legislations aregenerally intended asexpressions ofpublic policy on employer-

employee relations. Thecontracttherefore, between Japan AirLines (JAL) and Maritess

may


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apply only to the extent that

its provisions are notinconsistentwith Philippine labor lawsintended particularly toprotectemployees.Under the circumstances,

the dismissal of Maritesswithoutcomplying with PhilippineLabor law would be invalid

andany stipulation in the contractto the contrary is considered


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void. Since the law of the

forum in this case is thePhilippinelaw the issues should-beresolved in accordance withPhilippine law.B. The third paragraph of Art.17 of the Civil Code provides

that:CIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006)

"Prohibitive laws concerningpersons, their acts or


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property, and those which

have for their object publicorder, public policy and goodcustoms shall not berendered ineffective by lawsor judgments promulgated,orby determinations or

conventions agreed upon ina foreigncountry."Accordingly, a state's own

conict of laws rule may,


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exceptionally be

inapplicable, given publicpolicyconsiderations by the law ofthe forum.Going into the specicprovisions of the contract inquestion,

I would rule as follows:1 The duration of thecontract is not opposed toPhilippine

law and it can therefore bevalid as stipulated;


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2 The second provision to

the effect thatnotwithstandingduration, Japan Air Lines(JAL) may terminate heremployment isinvalid, being inconsistentwith our Labor laws;

3 That the contract shall beconstrued as governedunder andby the laws of Japan and

only the courts of Tokyo,Japan shall have


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jurisdiction, is invalid as

clearly opposed to theaforecited thirdparagraph of Arts. 17 and1700 of the Civil Code, whichprovides:"Art. 1700. The relationsbetween capital and labor

are not merely contractual.They are so impressedwith public interest that laborcontracts must yield

to the common good.Therefore, such contractsare


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subject to the special laws

on labor unions,collective bargaining, strikesand lockouts, closedshop, wages, workingconditions, hours of laborand similar subjects."ALTERNATIVE ANSWER;

A. When a contract has aforeign element such as inthefactual setting stated in the

problem where one of theparties


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is a foreign corporation, the

contract can be sustained asvalidparticularly the stipulationexpressing that the contractisgoverned by the laws of theforeign country. Given this

generally accepted principleof international law, thecontractbetween Maritess and JAL is

valid and it should thereforebeenforced.


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Applicable Laws; laws

governing marriages(1992)In 1989, Maris, a Filipinocitizen, married her bossJohnson,an American citizen, in Tokyoin a wedding ceremony

celebrated according toJapanese laws. One yearlater,Johnson returned to his

native Nevada, and hevalidly


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obtained in that state an

absolute divorce from hiswife Maris.After Maris received the nal

judgment of divorce, shemarried her childhoodsweetheart Pedro, also aFilipino

citizen, in a religiousceremony in Cebu City,celebratedaccording to the formalities

of Philippine law. Pedro laterleft


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for the United States and

became naturalized as anAmericancitizen. Maris followed Pedroto the United States, andafter aserious quarrel, Maris led asuit and obtained a divorce

decree issued by the court inthe state of Maryland.Maris then returned to thePhilippines and in a civil

ceremony


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celebrated in Cebu City

according to the formalitiesofPhilippine law, she marriedher former classmate Vincentlikewise a Filipino citizen. a)Was the marriage of Marisand

Johnson valid whencelebrated? Is their marriagestill validlyexisting now? Reasons.

SUGGESTED ANSWER:(a) The marriage of Mansand Johnson was valid when


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celebrated because all

marriages solemnizedoutside thePhilippines (Tokyo) inaccordance with the laws inforce inthe country where they aresolemnized (Japan), and

validthere as such, are also validin the Philippines.Their marriage no longer

validly subsists, because ithas been


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dissolved by the absolute

divorce validly obtained byJohnsonwhich capacitated Maris toremarry (Art. 26. FamilyCode).Applicable Laws; lawsgoverning marriages

(2003)Gene and Jane, Filipino, metand got married in Englandwhile both were taking up

post-graduate courses there.A few


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years after their graduation,

they decided to annul theirmarriage. Jane led anaction to annul her marriageto Gene inEngland on the ground oflatter s sterility, a ground forannulment of marriage in

England. The English courtdecreed the marriageannulled. Returning to thePhilippines,

Gene asked you whether ornot he would be free tomarry his


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former girlfriend. What would

your legal advice be? 5%SUGGESTED ANSWER:No, Gene is not free to marryhis former girlfriend. Hismarriage to Jane is validaccording to the forms andsolemnities of British law, is

valid here (Article 17, 1stpar.,NCC). However, since Geneand Jane are still Filipinos

although living in England,the dissolution of theirmarriage is


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still governed by Philippine

law (Article 15, NCC). Since,sterility is not one of thegrounds for the annulment ofamarriage under Article 45 ofthe Family Code, theannulment

of Gene

s marriage to Janeon that ground is not valid inthePhilippines (Article 17, NCC)

ALTERNATIVE ANSWER:


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Yes, Gene is free to marry

his girlfriend because hismarriagewas validly annulled inEngland. The issue ofwhether or nota marriage is voidable,including the grounds

therefore, isgoverned by the law of theplace where the marriagewas

solemnized (lex locicelebrationis). Hence, even ifsterility is


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not a ground to annul the

marriage under thePhilippine law,the marriage is neverthelessvoidable because sterilitymakesthe marriage voidable underEnglish law. Therefore,

annulment of the marriage inEngland is valid in thePhilippines.Applicable Laws; Sale of

Real Property (1995)


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While in Afghanistan, a

Japanese by the name ofSato sold toRamoncito, a Filipino, aparcel of land situated in thePhilippines which Satoinherited from his Filipinomother.

1. What law governs theformality in the execution ofthecontract of sale? Explain

your answer and give itslegal basis.SUGGESTED ANSWER:


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CIVIL LAW Answers to the

BAR as Arranged by Topics (Year 1990-2006) Under Art. 16 par. 1, NCC,real property is subject to the3. The distribution of thepersonal properties inGermany

law of the country where it issituated. Since the propertyissituated in the Philippines,

Philippine law applies. Therule of


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lex rei sitae in Article 16

prevails over lex locicontractu inArticle 17 of the NCC.ALTERNATIVE ANSWER:Afghanistan law governs theformal requirements of thecontract since the execution

is in Afghanistan. Art. 17 oftheCivil Code provides that theforms and solemnities of

contracts, wills, and otherpublic instruments shall be


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governed by the laws of the

country in which they areexecuted. However, if thecontract was executedbefore thediplomatic or consularofcials of the Republic ofthe

Philippines in Afghanistan,Philippine law shall apply.Applicable Laws;Succession; Intestate &

Testamentary(2001)


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Alex was born a Filipino but

was a naturalized Canadiancitizen at the time of hisdeath on December 25,1998. He leftbehind a last will andtestament in which hebequeathed all

his properties, real andpersonal, in the Philippinesto hisacknowledged illegitimate

Fillpina daughter and nothingto


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his two legitimate Filipino

sons. The sons sought theannulment of the last will andtestament on the ground thatitdeprived them of theirlegitimes but the daughterwas able to

prove that there were nocompulsory heirs or legitimesunderCanadian law. Who should

prevail? Why? (5%)SUGGESTED ANSWER:


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The daughter should prevail

because Article 16 of theNewCivil Code provides thatintestate and testamentarysuccessionshall be governed by thenational law of the person

whosesuccession is underconsideration.Applicable Laws;

Sucession of Aliens (1995)


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Michelle, the French

daughter of Penreich, aGermannational, died in Spainleaving real properties in thePhilippines as well asvaluable personal propertiesin

Germany.1. What law determines whoshall succeed the deceased?Explain your answer and

give its legal basis.


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2. What law regulates the

distribution of the realpropertiesin the Philippines? Explainyour answer and give itslegalbasis.3. What law governs the

distribution of the personalproperties in Germany?Explain your answer andgive its

legal basis.SUGGESTED ANSWER:


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Assuming that the estate of

the decedent is being settledinthe Philippines)1. The national law of thedecedent (French law) shallgovernin determining who will

succeed to his estate. Thelegal basisis Art. 16 par. 2, NCC.ALTERNATIVE ANSWER:

French law shall govern thedistribution of his realproperties


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in the Philippines except

when the real property island whichmay be transmitted to aforeigner only by hereditarysuccession.SUGGESTED ANSWER:2. The distribution of the real

properties in the Philippinesshall be governed by Frenchlaw. The legal basis is Art.16,

NCC).SUGGESTED ANSWER:


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shall be governed by French

law. The legal basis is Art.16,NCC).Applicable Laws; Willsexecuted abroad (1993)A, a Filipino, executed a willin Kuwait while there as a

contract worker. Assume thatunder the laws of Kuwait, it isenough that the testator afxhis signature to the presence

of


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two witnesses and that the

will need not beacknowledgedbefore a notary public. Maythe will be probated in thePhilippines?SUGGESTED ANSWER:Yes. Under Articles 815 and

17 of the Civil Code, theformality of the execution ofa will is governed by the lawof

the place of execution. If thewill was executed with the


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formalities prescribed by the

laws of Kuwait and validthereas such, the will is valid andmay be probated in thePhilippines.Denition; Cognovit;Borrowing Statute;

Characterization(1994)In Private International Law(Conict of Laws) what is:1} Cognovit? 2) A borrowing

statute? 3)Characterization?SUGGESTED ANSWER:


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1) a) COGNOVIT is a

confession of judgmentwhereby aportion of the complaint isconfessed by the defendantwhodenies the rest thereof(Philippine law Dictionary,

3rd Ed.)(Ocampo v. Florenciano, L-M13553, 2/23/50).b) COGNOVIT is a

"statement of confession"Oftentimes, it


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is referred to as a "power of

attorney" or simply as a"power",it is the written authority ofthe debtor and his directionto theclerk of the district court, or

justice of the peace to enter

judgment against the debtoras stated therein. (WordsandPhrases, vol. 7, pp.

115-166).c) COGNOVIT is a plea in anaction which acknowledges


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that the defendant did

undertake and promise asthe plaintiffin its declaration has alleged,and that it cannot deny that itowes and unjustly detainsfrom the plaintiff the sumclaimed

by him in his declaration, andconsents that judgment beentered against thedefendant for a certain sum.

[Words andPhrases, vol. 7, pp.115-166).


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d) COGNOVIT is a note

authorizing a lawyer forconfessionof judgment by defendant.2) "BORROWING STATUTE"-Laws of the state or

jurisdiction used by anotherstate in deciding conicts

questioned involved in thechoice of law (Black's LawDictionary, 5th ed. 1979).3) a)

"CHARACTERIZATION" isotherwise called


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"classication" or

"qualication." It is theprocess of assigninga disputed question to itscorrect legal category(PrivateInternational Law, Salonga).b) "CHARACTERIZATION" is

a process in determiningunder what category acertain set of facts or rulesfall. (Paras,

Conict of Laws, p. 94. 1984ed.)


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International Law that where

the ends of justice stronglyindicate that the controversymay be more suitably triedelsewhere, then jurisdictionshould be declined and theparties relegated to relief tobe sought in another forum.

(Moreno. Philippine LawDictionary, p. 254, 1982 ed.).b) Where in a broad sensethe ends of justice strongly

indicate that the controversymay be more suitably tried


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statute. (Salonga. Private

International Law. p, 51.1967 ed.)d) Forum non conveniens isa doctrine whereby a court oflaw having full Jurisdictionover a case brought in aproper

venue or district declines todetermine the case on itsmeritsbecause Justice would be

better served by the trial overthe


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case in another jurisdiction.

(Webster's Dictionary)SUGGESTED ANSWER:(2} a) LONG ARM STATUTEis a legislative act whichprovides for personal

jurisdiction, via substitutedservice or

process, over persons orcorporations which arenonresidentsof the state and which

voluntarily go into the state,directly or


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by agent or communicate

with persons in the state forlimitedpurposes, inactions whichconcern claims relating toperformance or execution ofthose purposes (Black's LawDictionary, 5th Ed. 1979).

b) Long arm statute referssimply to authorizedsubstitutedservice.

Divorce; effect of divorcegranted to formerFilipinos; Renvoi


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Doctrine (1997)

In 1977, Mario and Clara,both Filipino citizens, weremarriedin the Philippines. Threeyears later, they went to theUnitedStates of America and

established their residence inSanFrancisco, California. In1987, the couple applied for,

and


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were granted, U.S.

citizenship. In 1989, Mario,claiming tohave been abandoned byClara, was able to secure adecree ofdivorce in Reno, Nevada,U.S.A.

In 1990, Mario returned tothe Philippines and marriedJuanawho knew well Mario's past

life.(a) Is the marriage betweenMario and Juana


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valid?

(b) Would the renvoi doctrinehave any relevance to thecase?SUGGESTED ANSWER:(a) Yes, because Phil lawrecognizes the divorcebetween

Mario and Clara as valid.SUGGESTED ANSWER:(b) No, The renvoi doctrine isrelevant in cases where one

countryapplies the domiciliary theoryand the other the


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nationality theory, and the

issue involved is which of thelaws of thetwo countries should apply todetermine the order ofsuccession,the amount of successionalrights, or, the intrinsic validity

oftestamentary provisions.Such issue is not involved inthis case.

ALTERNATIVE ANSWER:Yes. "Renvoi" - which means"referring back" is relevant


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because here, we are

applying U.S. law to Mario,being alreadyits citizen, although theformalities of the secondmarriage willbe governed by Philippinelaw under the principle of lex

locicelebrationis.Domiciliary theory vs.Nationality Theory (2004)

Distinguish briey but clearlybetween: Domiciliary theory


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and nationality theory of

personal law. (5%)SUGGESTED ANSWER:DOMICILIARY THEORYposits that the personalstatusand rights of a person aregoverned by the law of his

domicileor the place of his habitualresidence. TheNATIONALITY

THEORY, on the other hand,postulates that it is the law of


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the person's nationality that

governs such status andrightsForum Non Conveniens &Lex Loci Contractus (2002)Felipe is a Filipino citizen.When he went to Sydney forvacation, he met a former

business associate, whoproposedto him a transaction whichtook him to Moscow. Felipe

brokered a contract betweenSydney Coals Corp. (Coals),an


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Australian rm, and Moscow

Energy Corp. (Energy), aRussian rm, for Coals tosupply coal to Energy on amonthly basis for threeyears. Both these rms werenotdoing, and still do not do,

business in the Philippines.Felipeshuttled between Sydneyand Moscow to close the

contract.


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He also executed in Sydney

a commission contract withCoalsand in Moscow with Energy,under which contracts hewasguaranteed commissions byboth rms based on a

percentageof deliveries for the three-year period, payable inSydney and

in Moscow, respectively,through deposits in accountsthat he


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opened in the two cities.

Both rms paid Felipe hiscommission for four months,after which they stoppedpaying him. Felipe learnedfrom his contacts, who areresidents of Sydney andMoscow, that the two rms

talked toeach other and decided tocut him off. He now les suitin

Manila against both Coalsand Energy for specicperformance.


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A. Dene or explain the

principle of

lex locicontractus . (2%)B. Dene or explain the ruleof forum nonconveniens (3%)C. Should the Philippinecourt assume jurisdiction

over the case? Explain. (5%)SUGGESTED ANSWER:A. LEX LOCI CONTRACTUSmay be understood in two

senses, as follows:(1) It is the law of the placewhere contracts, wills, and


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other public instruments are

executed and governs their forms and solemnities ,pursuant to the rstparagraph,Article 17 of the New CivilCode; or(2) It is the proper law of the

contract; e.i., the system oflaw intended to govern theentire contract, including itsessential requisites,

indicating the law of theplace with


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which the contract has its

closest connection orCIVIL LAW Answers to the BAR as Arranged by Topics (Year 1990-2006) where the main elements ofthe contract converge. As

country of which they arecitizens. Since their marriageisillustrated by Zalamea v.

Court of Appeals (228SCRA 23


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[1993]) , it is the law of the

place where the airline ticketwas issued, where thepassengers are nationalsandresidents of, and where thedefendant airline companymaintained its ofce.

ALTERNATIVE ANSWER:A. Under the doctrine of lexloci contractus, as a generalrule,

the law of the place where acontract is made or enteredinto


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governs with respect to its

nature and validity, obligationandinterpretation. This has beensaid to be the rule eventhoughthe place where the contractwas made is different from

theplace where it is to beperformed, and particularlyso, if the

place of the making and theplace of performance are the


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same (United Airline v. CA,

G.R. No. 124110, April 20,2001).SUGGESTED ANSWER:B. FORUM NONCONVENIENS means that acourt hasdiscretionary authority to

decline jurisdiction over acause ofaction when it is of the viewthat the action may be justly

andeffectively adjudicatedelsewhere.


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SUGGESTED ANSWER:

C. No, the Philippine courtscannot acquire jurisdictionoverthe case of Felipe. Firstly,under the rule of forum nonconveniens, the Philippinecourt is not a convenient

forum asall the incidents of the caseoccurred outside thePhilippines.

Neither are both Coals andEnergy doing businessinside the


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Philippines. Secondly, the

contracts were not perfectedin thePhilippines. Under theprinciple of lex locicontractus, the lawof the place where thecontract is made shall apply.

Lastly, thePhilippine court has nopower to determine the factssurrounding the execution of

said contracts. And even if a


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proper decision could be

reached, such would haveno bidingeffect on Coals and Energyas the court was not able toacquire jurisdiction over thesaid corporations. (ManilaHotel

Corp. v. NLRC. 343 SCRA1, 1314[2000])Nationality Theory (2004)PH and LV are HK Chinese.

Their parents are nowFilipino


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citizens who live in Manila.

While still students in MNSState, they got marriedalthough they are rstcousins. Itappears that both in HK andin MNS State rst cousinscould

marry legally.They plan to reside and setup business in thePhilippines.

But they have beeninformed, however, that themarriage of


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rst cousins here is

considered void from thebeginning byreason of public policy. Theyare in a dilemma. They don twant to break Philippine law,much less their marriagevow.

They seek your advice onwhether their civil status willbeadversely affected by

Philippine domestic law?What is youradvice? (5%)


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SUGGESTED ANSWER:

My advise is as follows: Thecivil status of' PH and LV willnot beadversely affected byPhilippine law because theyare nationals ofHong Kong and not Filipino

citizens.Being foreigners,their status,conditions and legal capacityin the Philippines are

governed by thelaw of Hong Kong, the


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valid under Hong Kong law, it

shall be valid and respectedin thePhilippines.Naturalization (2003)Miss Universe, from Finland,came to the Philippines on atourist visa. While in this

country, she fell in love withandmarried a Filipino doctor. Hertourist visa having been

expired and after themaximum extension allowedtherefore,


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the Bureau of Immigration

and Deportation (BID) ispresently demanding thatshe immediately leave thecountrybut she refuses to do so,claiming that she is already aFilipino

Citizen by her marriage to aFilipino citizen. Can the BIDstill order the deportation ofMiss Universe? Explain. 5%

SUGGESTED ANSWER:


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Yes, the BID can order the

deportation of Miss Universe.Themarriage of an alien womanto a Filipino does notautomatically make her aFilipino Citizen. She mustrst

prove in an appropriateproceeding that she does nothaveany disqualication for

Philippine citizenship. (YungUan


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Chu v. Republic of the

Philippines, 158 SCRA 593[1988]) . SinceMiss Universe is still aforeigner, despite hermarriage to aFilipino doctor, she can bedeported upon expiry of her

allowable stay in thePhilippines.ANOTHER SUGGESTEDANSWER:

No, the Bureau ofImmigration cannot order herdeportation.


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An alien woman marrying a

Filipino, native-born ornaturalized, becomes ipsofacto a Filipino if she is notdisqualied to be a citizen ofthe Philippines (Mo Ya Lim vCommission ofImmigration, 41 SCRA 292

[1971]), (Sec 4,Naturalization Law). All thatshe has to do is prove in thedeportation proceeding the

fact of her marriage and thatshe is


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not disqualied to become a

Filipino Citizen.ANOTHER SUGGESTEDANSWER:It depends. If she isdisqualied to be a Filipinocitizen, shemay be deported. If she is

not disqualied to be aFilipinocitizen, she may not bedeported. An alien woman

who


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in the Philippines, hired Eric,

a Filipino engineer, for itsproject in State B. In thecontract of employmentexecuted bythe parties in State B, it wasstipulated that the contractcould

be terminated at thecompany's will, whichstipulation isallowed in State B. When

Eric was summarilydismissed by


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Able, he sued Able for

damages in the Philippines.Will thePhilippine court apply thecontractual stipulation?SUGGESTED ANSWER:a) Using the " SIGNIFICANT RELATIONSHIPS THEORY ",

there are contacts signicantto the Philippines. Amongthese arethat the place of business is

the Philippines, theemployee


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concerned is a Filipino and

the suit was led in thePhilippines,thereby justifying theapplication of Philippine law.In theAmerican Airlines case theCourt held that when what is

involved is PARAMOUNT STATE INTEREST such astheCIVIL LAW Answers to the

BAR as Arranged by Topics (Year 1990-2006)


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protection of the rights of

Filipino laborers, the courtcan natural mother as hermiddle name. The Court hasruleddisregard choice of forumand choice of law. Thereforethe

Philippine Court should notapply the stipulation inquestion.ALTERNATIVE ANSWER:

b) No, lex fori should beapplied because the suit isled in


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In a class suit for damages,

plaintiffs claimed theysufferedinjuries from torture duringmartial law. The suit was ledupon President EM s arrivalon exile in HI, a U.S. state.The

court in HI awarded plaintiffsthe equivalent of P100 billionunder the U.S. law on alientort claims. On appeal, EM s

Estate raised the issue ofprescription. It argued thatsince


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said U.S. law is silent on the

matter, the court shouldapply:(1) HIs law setting a two-year limitation on tort claims;or (2)the Philippine law whichappears to require that

claims forpersonal injury arising frommartial law be brought withinone year.

Plaintiffs countered thatprovisions of the mostanalogous


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federal statute, the Torture

Victims Protection Act,should beapplied. It sets ten years asthe period for prescription.Moreover, they argued thatequity could toll the statute oflimitations. For it appeared

that EM had procuredConstitutional amendmentsgranting himself and thoseacting

under his direction immunityfrom suit during his tenure.


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The US Court will apply US

law, the law of the Jorum, indetermining the applicableprescriptive period. While USlawis silent on this matter, theUS Court will not applyPhilippine

law in determining theprescriptive period. It isgenerallyafrmed as a principle in

private international law that


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procedural law is one of the

exceptions to the applicationofforeign law by the forum.Since prescription is a matterofprocedural law even inPhilippine jurisprudence,

(Codaltn v.POEA/ JVLRC/Broum andRoot International, 238SCRA

721 [1994]), the US Courtwill apply either HI or Federallaw


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bar q_conflict of laws

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