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Conflict of laws is otherwise known as private international law. Although the name includes the term “international law,” it will be discussed in the following pages why this law school subject is not part of political law. The usual procedures in court cases will also be explored while picking up conflict of laws principles along the way, from the commencement of the action to the court’s conduct of pre-trial proceedings.


When the factual circumstances of a case allow linking it to at least two different legal orders, the so-called conflict of laws arises.[1]

Conflict of laws or private international law, in the context of the Philippines, is a body of Philippine statutory and constitutional provisions, rules, jurisprudence and legal principles that determine whether the law of a foreign country should be applied to a legal dispute with an international or foreign element. It is a division of law that more specifically falls under Philippine civil law, dealing with the resolution of legal issues that involve private transactions and private relations that invite the application of the laws of more than one state, i.e., a foreign state and the Philippine State.

The term “private international law” is preferred by this humble author because it does not carry the baggage or bias that the term “conflict of laws” carries. As will be discussed in more detail in the following pages of this book, it is not always the case that a foreign law is different from or in conflict with Philippine municipal laws. In fact, there is a presumption that, in the absence of evidence to the contrary, foreign laws are the same as foreign laws. Also, it is not impossible for a municipal law and a foreign law to be the same. An example of this would be laws criminalizing sexual abuse or laws setting citizenship on the basis of blood relations. While the effect and the nitty-gritty details may be different, it is still possible for laws of two different jurisdiction to be the same from the practical viewpoint.

Note that, in conflict of laws, the term “municipal law” is a term of art which refers to the laws of the Philippines, as opposed to the laws of a foreign country, i.e., foreign laws.


Because of the complex nature of conflict of laws disputes and due to the rejection by many courts of traditional approaches to their resolution, new approaches to choice of law such as the “governmental-interest analysis” (also known as “interest analysis)[2] have been developed. Another approach is to determine whether a “true conflict” or “false conflict” exists between the law of the forum state and the law of the other state. According to Encyclopædia Britannica, a false conflict exists if the laws of both states do not differ; if, though ostensibly different, both laws are designed to effectuate the same policy; or if one law is construed to be inapplicable to cases such as the one before the court. If the forum finds that the other state does not have an interest in the dispute, it is opined that a false conflict exists, thus making the local law of the forum the applicable choice of law.[3]

In the Philippines, however, there is no recognition – and there appears to be no need for such recognition – of this “true-or-false-conflict” approach because the viewpoint of a Philippine court always starts from the laws of the Philippines and the burden to show the existence and applicability of foreign law is borne by the party invoking the same. Without proper proof of this, the presumption is that the foreign law contains provisions that are the same as Philippine laws.[4] Whether or not there is a “true conflict” in a conflicts case is usually not a concern of Philippine courts.

Encyclopædia Britannica offers another approach to conflict of laws resolutions. This is known as the “better-law approach” which attempts to determine which of two potentially applicable laws is better as a solution to the problem at hand.[5] In both the governmental-interest approach and the better-law approach, the law of the forum is always the reference point. If the foreign law is deemed to be inapplicable in the eyes of the forum, the Philippine court is justified in adopting a “homeward trend”[6] or “home court approach,” especially if the foreign law contains no applicable law on the dispute.

The student of conflict of laws must notice that different jurisdictions use different terms for their own version of conflicts resolution approaches. Despite this, by looking deeper into the purpose and ultimate goal of the approach, one can realize that they point to the same analysis: (a) whether or not the case is a conflicts case; (b) whether or not the municipal law of the forum provides a conflicts rule, i.e., it points to the application of a foreign law; (c) whether or not a foreign law exists; (c) whether or not the foreign law should govern the case; (d) whether or not the application of the foreign law will defeat the interest of the forum state, such as its public policy; and (e) whether or not the choice of law made by the court achieves the goal in international law of predictability, certainty, ease of application, and substantial and adequate justice.


In the Philippines, conflict of laws is primarily a civil law subject that deals with the municipal laws of the Philippines, which in turn point to the application of the laws of a foreign country on a given set of facts with a foreign element. It is a civil law subject because it is primarily concerned about the private transactions and private relations of private persons such as contracts, marriages, births, deaths, and so on. On the other hand, public international law relates to the rights and obligations of nations in the international community, such as the United Nations Convention on the Law of the Sea (UNCLOS).

Public international law is the body of rules. characterized as laws, that govern the relations between states and their compliance with or observance of treaties, customary international law, and general principles of law. Private international law, on the other hand, is the body of laws, that is to say not only the Constitution but also those enacted by Congress, that govern the resolution of legal disputes that contain a foreign element. The proper analysis and application of the latter determines, to name one instance, which law of which country should apply over which issue in a particular case.


The difficulty in the study of private international law is that it is not a codified set of rules but a web or a mix-and-match of statutory provisions and prevailing principles of law and equity. In fact, sometimes, the law student will find that conflict of laws rules are often nestled inconspicuously between or within seemingly-innocent provisions of statutes.

Conflict of laws rules in the Philippines are scattered all over its laws and statutes. Even the 1987 Constitution contains conflict of laws rules such as Section 7 of Article XII which states: “Section 7. Save in cases of hereditary succession, no private lands shall be transferred or conveyed except to individuals, corporations, or associations qualified to acquire or hold lands of the public domain.”

Other conflict of law rules may be found in, in addition to jurisprudence interpreting their provisions, the Labor Code of the Philippines, the Civil Code of the Philippines, the Revised Penal Code of the Philippines, and others. In fact, conflict of laws principles may be found not only in statutes but also in Supreme Court decisions.

General principles of law such as good faith, public policy, equity, international comity and others are likewise applicable in the study of private international law. Supreme Court decisions that interpret the law form part of the legal system.[7] They are not in themselves laws in the strict sense but they are promulgated by competent authority; hence, they are given the force and effect of law.

An example of a Supreme Court decision that provides a clarification on conflict of laws rules in the Philippines is the case of Hasegawa v. Kitamura[8] which declared that “in the judicial resolution of conflicts problems, three consecutive phases are involved: jurisdiction, choice of law, and recognition and enforcement of judgments.” Corresponding to these phases are the following questions: (a) where can or should litigation be initiated; (b) which law should the court apply; and (c) where can the resulting judgment be enforced. These three phases are not mentioned elsewhere even in statute or in the fundamental law.

Another example would be Vda. de Alcañeses v. Alcañeses[9] which declared that “[t]here is no specifically prescribed means to resolve a conflict of laws problem; choice of law varies depending on the circumstances. Courts may employ the state with the most significant relationship test in determining choice of law in tort liability.” Again, this so-called “state with the most significant relationship test” is not mentioned in any of the laws passed by Congress or in the 1987 Constitution. It is a product of judicial determinations not only in this jurisdiction but also abroad.

In the meantime, while there is no statute in the Philippines that fixes the mathematical rules by which a conflicts case should be resolved or by which the proper law should be determined, Philippine courts are constrained to apply prevailing approaches used by foreign courts that have had richer experience in private international law.


Private international law is different from public international law in that, the former deals with municipal laws and the private transactions of private individuals while the latter generally deals with the community of nations and their rights, obligations, and interactions. Also, private international law is a field that falls under civil law while public international law belongs to political law.

Public international law is the body of so-called “laws” that govern the relations between states, which relations are primarily reliant on the consent of the party states and their willingness to abide by their international obligations. It includes treaties, customary international law, and general principles of law. Public international law is based on the idea that states are equal and have a duty to cooperate with each other. It aims to promote, among others, peace and security, protect human rights, and regulate economic and environmental relations.

In public international law, there is no central legislative authority that issues statutes and there is no central judicial authority that issues decisions resolving disputes. On the other hand, private international law depends on the provisions of law or on the principles promulgated by a competent authority, whether legislative or judicial.

The law student will notice that this book refers to laws that govern the relations between states as “so-called laws.” This is not to diminish or to devalue the importance of public international law. The purpose of this is to emphasize on the fact that while conflict of laws rules are primarily sourced from acts of Congress, for example, the sources of public international law are predominantly dependent on bilateral and multilateral agreements, thus requiring consent. Also, non-compliance with conflict of laws rules have clear and determinable consequences; on the other hand, non-compliance with treaty and other international obligations is usually met with sanctions which, again, are political and economic decisions such as but not limited to economic sanctions, diplomatic sanctions, and military sanctions, all discretionary in nature.

There is also a difference between private international law and public international law as to the process of creating sources. For example, treaties insofar as Philippine laws are concerned are not valid without the concurrence of the Senate by a two-thirds vote.[10] Then and only then do such treaties become part of the legal system. As to customary international law and general principles of law, however, Section 2 of Article II of the 1987 Constitution states that the Philippines “adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations.”[11] Treaties are governed by the doctrine of transformation while generally accepted principles of international law are governed by the doctrine of incorporation.[12]

On the other hand, the usual and regular exercise of legislative powers by Congress can create a source of private international law. For instance, if the Philippine Congress opts to enact a law amending the lex nationalii principle under Article 15 of the New Civil Code, it can do so without relying on the ratification of the President or the consent of other nations.


Due to technological advancements in human life, such as in the field of transportation and communication, courts are at times confronted with cases that involve the study or evaluation of the application of foreign laws. Foreigners marry Filipinos. Filipinos commit delicts in other jurisdictions. Foreign corporations enter into contracts with domestic corporations. Purchases of property are done internationally and online. Last wills are executed by foreigners and probated in the Philippines. All these are fertile grounds for conflicts cases to grow.

The need for private international law basically arises from two facts: (a) that different countries have different laws that may or may not be in conflict with with one another; and, (b) that persons, property, contracts, injuries and other transactions may find themselves cutting territorial lines. These situations can lead to uncertainty and confusion about which law should apply to a particular case. Private international law comes in and provides a set of rules to help resolve these issues and see to it that justice is done whatever the forum is and whatever be the international setup of the parties or the aspects of the case.

An ideal, if not perfect, analysis and application of private international law is believed (a) to protect legal systems from forum shopping, (b) ensure fundamental rights which are recognized by all nations, (c) safeguard the expectations of parties and the states involved, (d) guard the public policies of each state, (e) promote legal certainty and predictability (flexibility as the case or as justice may require), (f) to facilitate transnational transactions, and (f) to advance fairness and efficiency in the administration of justice over disputes with a foreign element.


It used to be that persons and property remained within the same jurisdiction for most or for the rest of their lifetime. If ever there were persons and property that cut across the territorial lines of an archipelagic country such as the Philippines, such occurrences used to be seldom and far apart. The Philippines' geographical characteristics differentiate it far from a landlocked state such as New York or North Carolina wherein persons and property may move through state lines with more frequency and with more ease. These are opportunities for persons and property to move beyond their original territory and are rich sources of conflict of laws problems, especially if the persons and property of one state interact with or create legal ties (vinculum juris) with the persons or property of another state.

The geographical qualities of the states in the United States, being mostly compact and adjacent to one another, allowed the proliferation of conflict of laws cases in that jurisdiction. This is one of the reasons why the United States Supreme Court is richer in jurisprudence on private international law. Other reasons include: (a) that the United States has a long history of international trade and commerce, which has led to a number of cases involving cross-border disputes, thus helping in the development of the body of private international law case law in the United States; (b) that the United States has a federal system of government, which means that there are both federal and state laws that can apply to cross-border disputes, allowing a complex body of law to evolve over time; and, (c) that the United States has a strong history or tradition of judicial activism, thereby encouraging more a flexible and adaptable approach to private international law in the United States.[13]

While United States Supreme Court decisions on conflict of laws are not binding upon the Philippine Supreme Court, such decisions are nevertheless persuasive,[14] especially if they are consistent with this jurisdiction’s public policies and municipal laws

An example of the United States Supreme Court ruling that is oft-cited in private international law textbooks and law school syllabi in the Philippines is the case of In Re Union Carbide Corp. Gas Plant Disaster, 634 F. Supp. 842 (S.D.N.Y. 1986) which declared that “the doctrine of forum non conveniens allows a court to decline jurisdiction, even when jurisdiction is authorized by a general venue statute.” Another example is in political law wherein Philippine jurisprudence is studded with citations of Marbury v. Madison.[15]


The term “vinculum juris” was mentioned in the previous paragraphs. Vinculum juris or “juridical tie” simply refers to the legal relation created between persons or between persons and property as a consequence of acts that are governed by existing laws.

A vinculum juris is created through the mixture of or interaction between acts and legal provisions. When, for instance, a seller and a buyer agree on a sale, their acts are baptized by the law on sale, thereby creating legal consequences in case of compliance and noncompliance. When a person asks a friend if his/her new pair of jeans looks good on her and the latter says yes even if, in fact, it does not, there no vinculum juris because there is no law regulating such a relation.

The significance of vinculum juris in the field of conflict of laws is that, when an act is done within the territorial jurisdiction of a foreign state, it is the law of that state that baptizes the relation created, marking it with a legal rubber stamp, so to speak. This is the basis for the reluctance or hesitance of courts to turn away from traditional “lex loci” rules. Why should a different law apply if the relation was, in effect, “created” by the law of another state?

For example, if a negligent act is committed by the husband in the State of Maine by crashing a car and injuring his wife, the vinculum juris is created by the law of Maine even if the parties are citizens and domiciliaries of Vermont. Modern approaches, however, have resulted in different views.

The first view says that lex loci delicti applies for obvious reasons. The second view says that, even though the case relates to negligence, a re-characterization of the case would result in categorizing the case under family rights and duties, thereby requiring the application of lex nationalii. The third view is that, even if re-characterization is not proper, Vermont law should apply because it has the most significant relationship to the occurrence, Maine being merely incidental. The fourth view is that the obligation to compensate for damages is transitory, attaching to the tortfeasor wherever s/he may be, making no difference where the wrongful injury occurred.


As a general rule, only Philippine laws have legal force and effect within its territory and foreign laws do not extend their power and effects beyond their own territories. The reverse is also true, i.e., Philippine laws cannot validly extend their effects, as a rule, beyond the Philippine territorial limits and are generally confined within the edges of its national territory.[16]

While it is true that only Philippine laws should be given force and effect within the Philippine territory, it bears equal weight to say that this jurisdiction adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations, in compliance with Section 2 of Article II of the 1987 Constitution. Cooperation and amity with nations involve the application of the principles of reciprocity and the principle of comity with other members of the community of nations. Hence, the 1987 Constitution itself recognizes a self-limitation to its sovereign powers by allowing, for example, foreign decisions to be recognized and enforced within its territorial limits.

According to the Supreme Court, the rules of comity, utility and convenience of nations have established a usage among civilized states by which final judgments of foreign courts of competent jurisdiction are reciprocally respected and rendered efficacious under certain conditions that may vary in different countries.[17] This principle was prominently affirmed in the leading United States case of Hilton v. Guyot[18] and expressly recognized in Philippine jurisprudence beginning with Ingenholl v. Walter E. Olsen & Co.[19] The conditions required by the Philippines for recognition and enforcement of a foreign judgment were originally contained in Section 311 of the Code of Civil Procedure, which was taken from the California Code of Civil Procedure which, in turn, was derived from the California Act of March 11, 1872.[20] Remarkably, the same procedural rule is now outlined in Section 48, Rule 39 of the Rules of Civil Procedure.

As long as the foreign decision or the foreign law sought to be enforced in the Philippines is not contrary to this jurisdiction’s public policy, it is properly in line with the principles of international cooperation to give effect to such foreign decision or law whenever it is appropriate or legally acceptable. For example, in the case of Republic v. Manalo,[21] it was held that “Paragraph 2 of Article 26 of the Family Code of the Philippines confers jurisdiction on Philippine courts to extend the effect of a foreign divorce decree to a Filipino spouse without undergoing trial to determine the validity of the dissolution of the marriage. It authorizes our courts to adopt the effects of a foreign divorce decree precisely because the Philippines does not allow divorce. Philippine courts cannot try the case on the merits because it is tantamount to trying a divorce case. Under the principles of comity, our jurisdiction recognizes a valid divorce obtained by the spouse of foreign nationality, but the legal effects thereof, e.g., on custody, care and support of the children or property relations of the spouses, must still be determined by our courts.”


The purpose of the study of private international law is to achieve stability, predictability, consistency, ease of application and the preservation of public policies and expectations of the laws of the states of forums and the parties involved. “Stability, predictability and consistency” are catchphrases in private international law and are used as general guidelines in the process of characterization and choice of law.

It must be remembered that conflict of laws deals primarily with the private transactions of private individuals such as a contract of loan. In said contract, the creditor and debtor may provide, for example, that the dispute should be filed in the proper court of Canada, which is a choice-of-court provision, also known as a contractual choice of venue. They may also provide in their agreement that the laws of Canada should govern even though both of them are Filipinos.

Even without these contractual stipulations, however, if the place of performance is in Canada, it is natural to assume that the parties expect Canadian law to govern their contract, being the law of the place of intended performance, otherwise known as lex loci solutionis. These expectations arising from contractual stipulations and from circumstances surrounding the parties should be protected because it would not serve the best interests of justice if the parties are compelled to litigate in a forum in a state where they had neither the intention nor the connection to sue. It would also be a violation of the principle of predictability if a law not intended by the parties is made to apply in their contract which, by the way, has the force of law between them.

As mentioned, consistency of application and predictability of results are part of the goals of the study of private international law. Interestingly, the traditional approaches to choice of law have had a history of predictability and consistency. In fact, preference for these traditional approaches is grounded on their ease of application and rigid nature. For example, if a tort occurred in North Carolina, it is within the reasonable expectations of the parties that the proper law to govern would North Carolina law, following the lex loci delicti commissi rule. This traditional “lex loci” approach is territory-centered and is very simply to apply.

However, it may also happen that the parties were merely traversing or passing by North Carolina on their way to another state, say Virginia, when the tort occurred, being citizens, residents or domiciliaries of a third state, say Georgia. Say also that both the tortfeasor and the victim are from Alabama and they are on their way to Pennsylvania. Strict compliance with the lex loci delicti commissi rule would mean that the parties are now governed by the law of a foreign state with which they have no connection or relationship whatsoever, except that the tort occurred there. Because of this, the forum may be inclined to apply another approach, a modern one, which is called doctrine of “the state with the most significant relationship.”

At this point, the student should notice that the most significant relationship approach and the center of gravity appear to be similar. True, they are similar, especially in the process of analysis and in the goal sought to be achieved, but they are not exactly the same. The first approach is usually used in torts cases while the second approach is usually used in contracts cases. Moreover, in Bates v. Superior Court,[22] it was held that the inquiry to determine which state has the significant relationship is qualitative and not quantitative. The center of gravity approach appears to be more quantitative than qualitative.

While this author maintains that there is a difference between the most significant relationship test and the center of gravity test, the first usually being used in torts cases and the second usually being used in contracts cases, it is also recognized that the Supreme Court of Wisconsin has said: “Other courts applying a similar reasoning have referred to their solution as a center of gravity or a grouping of contacts. While these phrases have been labeled as mere catchwords, they are, when applied in connection with the case to which they were originally used, meaningful shorthand phrases for the expression of the rule that we adopt [i.e., the most significant relationship test].”[23] The same Court also said: “The Tentative Draft No. 9 of the Restatement, Conflict of Laws, 2d p. 3, sec. 379, now provides that the local law of the state which has the most-significant relationship with the occurrence and with the parties determines the rights and liabilities of the parties. The Draft then lists the contacts that determine the state of most-significant relationship. These are: place of the injury; the place of the conduct; the domicile, nationality, place of incorporation and place of business of the parties; and the place where the relationship of the parties is centered.[24]

In Wilcox v. Wilcox[25] it was held:

“As foreshadowed by the three cases referred to above, we adopt the general principles of the commentators and result of the cases critical of the lex loci rule in that we believe that in order to determine the most-significant relationship consideration should be given to the policies and interests of the forum state, the tort state, and of other states that may have an interest by virtue of the domicile of the parties or other relevant factors. It is obvious that one state may have a legitimate concern with one facet or issue of the case, but not with another, and hence we conclude that it is not necessary in each case to apply only the law of a single state to all phases of the lawsuit, i.e., what is negligence, for example, may well involve the application of the rules of the road of the tort state since it is that state that is primarily concerned with safety on its highways.”[26] Notice here that the most significant relationship rule was used to treat a torts case.


To better understand the proper analysis involved in conflict of laws, the student must keep in mind that there are traditional modes of resolving conflicts cases and there are modern ones. In making a choice of law, the forum is often presented by the parties – to advance their theory of the case and to ensure their success in the litigation – with different possible applicable conflict of laws principles such as the doctrine of the place of the tort (place of injury or place of the wrong; also known as “lex loci delicti”) or the doctrine of the most significant relationship. The first one states that the choice of law must tilt in favor of the law of the place of injury, following the traditional concept of territoriality. On the other hand, the second one invokes a modern choice of law analysis that tilts in favor of the law of the state which has the most significant concern in the outcome of the litigation.[27]

While the lex loci delicti doctrine and the most significant relationship doctrine, after analysis by the court, may arrive at the same conclusion, e.g., that the law of a certain state should be applied in the determination of the rights and obligations of the parties involved in the injury, several factors along the way may change the end of the analysis such as but not limited to the place of the injury per se, the place where the conduct complained of was made, the domicile, nationality, place of incorporation or place of business of the parties, and the place where the relationship between the parties is centered. As can be noticed, the doctrine of lex loci delicti – a traditional rule – offers a more rigid and more predictable[28] outcome of litigation while the modern theory of most significant relationship offers flexibility that may create more convenience or ensure reasonable and substantial justice to the parties, owing to the modern rule’s open-ended nature. For example, a rigid approach may cause injustice to a party whose domicile is situated thousands of kilometers away from the occurrence.[29] On the other hand, a flexible approach may cause surprise to the parties who had no intention or expectation to be governed by a foreign law.

It must be emphasized here that the doctrine of lex loci delicti and the doctrine of most significant relationship are principles of conflict of laws which are more applicable when the characterization of the case results in a finding that the dispute falls under the category of torts law. Other principles such as lex loci contractus, lex loci solutionis and lex intentionis govern contracts. Furthermore, lex aribtri governs the procedural rules to guide disputes, arbitration rules and place of arbitration. These will be discussed in greater detail in separate chapters.


For a case to be considered a conflict of laws case (“a conflicts case”), the dispute must have or must contain a foreign element.[30]

In private international law, a foreign element is a fact or circumstance that connects a legal dispute to more than one state and, as a result, involves the invocation or the application of the law of a state other than the Philippines.[31] This can include the nationality of the parties, the location of the property involved, or the place where the occurrence (accident, contract, etc.) giving rise to the dispute. When a foreign element is present, the forum may find it necessary to determine which country's law should apply and, as a result, certain choice of law principles are available at its disposal. The party who believes that a certain choice of law doctrine is more favorable to his/her version of the case would naturally invoke such favorable doctrine while the opposing party may attempt to convince the court to apply a different principle leaning more towards his/her theory of the case.

The reverse then is also true. If a case has no foreign element, it does not matter if one of the parties is a foreigner; the case remains outside the realm of conflict of laws. If, for example, a case involves a contract of loan between a Filipino and a German, there is no need to invoke private international law rules if the contract was perfected, the instrument was executed, the place of performance was set and the case was filed, all in the Philippines. Also, in a criminal case of sexual abuse against a Belgian citizen who committed the act in the Philippines against a Filipina, absent other factual matters that cut across the territorial lines of two or more states, there can be, strictly speaking, no foreign element.


A foreign element is a factual situation that cuts across the territorial lines of two or more countries and involves the possible application of the laws of two or more countries. From this, it can be seen by the student that a foreign element has three parts in its definition: (a) it is a factual situation; (b) it cuts across the territorial lines of two or more countries; and, (c) it invites or is affected by the possible application of the laws of two or more countries.

This author is inclined to add the work “possible” in the third part of the definition, although jurisprudence and most authors do not. The reason behind this is that, even if a case has a foreign element, the application of the foreign law is not automatic or inevitable simply because it is a conflicts case. There may be reasons for the forum to say that the forum state’s law, not a foreign law, should apply. These reasons may include failure to prove the existence of foreign law or protection of the forum’s public policy.

In defining a foreign element, textbooks always use the term “two or more countries” but it will yield much benefit for the student to understand that, insofar as Philippine laws are concerns, the Philippines should be one of those “two or more countries.” The reason for this is that, if the Philippines is not one of the two or more countries whose laws are invoked, Philippine courts could not care less about the circumstances and consequences of that foreign element. The Philippine law student concerns himself/herself in private international law only if the municipal laws of the Philippines are involved.

Notice as well that the jurisprudential definition of “foreign element” is that it is or that it contains a factual situation that cuts across territorial lines and is affected by the diverse laws of two or more states.[32] However, the author takes exception to the careless use of the term “diverse laws of two or more countries.” It appears that this definition presumes the divergence of laws between the Philippines and another country. While this may be true, it is not true in all situations. In fact, there is a presumption under Philippine law that, absent proof to the contrary, foreign laws are the same as Philippine laws. This is also the reason why the author prefers the clause “it invites or is affected by the possible application of the laws of two or more countries.”


Another matter that has to be settled in the early pages of this book is that a foreign element is not a legal question, not a question of law. It is a factual matter or a factual question. Hence, whether or not the income of a Japanese who taxable in Japan is not a foreign element; the foreign element in this example is the Japanese citizenship of the taxpayer. Whether or not his/her income is taxable under Japanese is a question of law, which is properly within the realm of choice of law, not important in the determination of whether a foreign element exists.


In the case of Karen Salvacion v. Central Bank,[33] the accused is a foreign citizen who was convicted by a Philippine court of the crime of Serious Illegal Detention committed against a minor. The issue was whether the foreign currency bank account of the accused could be subjected to a writ of attachment for the satisfaction of damages awarded in favor of the minor victim. The author humbly submits that, while the accused is a foreigner, this particular fact cannot, in the strict sense, be considered a “foreign element” within the purview of conflict of laws, because, although it is a factual situation, it does not cut across the territorial lines of the Philippines and another country – the bank account being situated in the Philippines – and it does not invite or involve the application of the laws of the Philippines and another country. In other words, the foreign citizen here cannot validly or reasonably invoke the laws of his own country because such an invocation would be irrelevant to the determination of the issues of the case.


A foreign element may assume different forms such as but not limited to the citizenship of the parties involved, the location of property, the place of injury, the place of perfection of contract, and the intention of the parties.

If a Filipino marries a Chinese, the citizenship of the latter may be considered a foreign element. Reason for this is that the fact of the latter being Chinese cuts across the territorial lines between China and the Philippines, considering that his/her nationality follows him/her wherever s/he goes under the principle of lex nationalii. The property relations of husband and wife, the support of their children and their custody may also be affected by the fact that one of the spouses if a foreigner. More importantly, in case the Chinese spouse obtains a divorce decree that capacitates him/her to remarry, Article 26 of the Family Code of the Philippines allows the Filipino spouse to benefit from the effects of the divorce.[34]

If property located in New York is sold between two Filipinos who are residing in the Philippines, Article 16 of the Civil Code of the Philippines declares that it (the property) is subject to the law of the place where it is situated, i.e., New York. Hence, even if the property sold is within the commerce of men in the Philippines, if New York law declares it unlawful or illicit, the consequences of the contract of sale such as the delivery of the thing sold will be affected by the divergent laws of the two countries.

Nevertheless, it is safe to argue that the obligations of the parties under the contract will remain insofar as Philippine laws are concerned. While it is true that, if the property located in New York is declared illegal under the law of that place even though the same is legal in the Philippines, thereby preventing its delivery, the Philippine forum would still be justified in making in personam judgments against the Filipino defendant residing in the Philippines for failure to fulfill his/her obligations to the other party. If the defendant, for example, properly pleads and proves that, under New York law, the property sold is outside the commerce of men and cannot be brought to the Philippines from New York, the plaintiff would still be entitled to payment of damages, interests and other just and equitable reliefs for the defendant’s failure to deliver. If the reason for the non-delivery of the property in New York is mere failure to do so, the Philippine forum is justified in citing the defendant for contempt for non-compliance with a court order.

If a Filipino bought a plane ticket in the Philippines for a flight that will depart from China to Russia and an accident occurs in the air space of Mongolia, a conflicts case may arise because the sale was perfected in the Philippines, while the execution of the contract was intended by the parties to commence in China. What complicates this is that the tortious incident, i.e., the accident, occurred in Mongolia.

Chinese law on torts and damages may be different from that of Philippine laws and Mongolian laws. However, following the traditional principle of lex loci delicti, the choice of law possibly tilts in favor of Mongolian torts law, being the place of injury. In such a case, more complications will arise if the airline is a corporation registered and existing under Philippine laws and has its corporate seat in this country. This is so because, naturally, the injured parties may opt to sue the airline in Philippine courts, invoking Philippine laws on torts and the principle of lex loci contractus; while the airline, if it believes that Chinese tort law is more lenient on the award of damages, may invoke the lex loci solutionis rule, i.e., matters connected with the performance of contracts are regulated by the law in force at the place of intended or actual performance. Others yet may say that the lex loci delicti should be applied because the place of the occurence of the tort is Mongolia.

An additional layer of complication is the Warsaw Convention[35] which applies to all international transportation of persons, baggage, or goods performed by aircraft for hire and for free.[36]


In a conflicts case, the first consideration in the pursuit of the legal action is the existence of jurisdiction on the part of the court called upon to resolve the dispute.

Conflict of laws or private international law generally does not clash with the issue of jurisdiction in the broad sense because jurisdiction is conferred by law. As long as a law exists that recognizes the power of a court to hear and decide a case falling within a certain category (otherwise known as “subject matter”), that court will have jurisdiction. To emphasize, jurisdiction is not only a power but also a duty[37] of a court, board, commission, tribunal or officer to take up a case and proceed to hear and decide the same.[38]

Jurisdiction has different aspects: (a) jurisdiction over the subject matter; (b) jurisdiction over the parties; (c) jurisdiction over the res; (d) jurisdiction over the remedies; and (e) jurisdiction over the issues.


Simply because the case involves a foreign element does not mean that Philippine courts have no jurisdiction over the dispute. Otherwise put, jurisdiction is not affected by the fact that the dispute is a conflicts case because jurisdiction is primarily a question of law.

As already mentioned, a conflicts case does not generally clash with the concept of jurisdiction in the broad sense. The presence of a foreign element does not mean that the case is beyond the power of this jurisdiction’s courts. As long as a law recognizes the court’s power to hear and decide a class of cases, that jurisdiction remains, attaches and adheres even though the dispute involves foreigners. The Supreme Court has explained that the “question of whether the law of a state can be applied to a transaction is different from the question of whether the courts of that state have jurisdiction to enter a judgment.”[39]

For example, assume that two South African nationals are staying in a hotel in Manila City. One of them borrowed Php1,000,000.00 from the other. If the creditor sues the debtor for collection of the said amount,[40] the latter cannot interpose the defense that s/he is a South African citizen. The proper court retains jurisdiction over the collection suit regardless of the fact of citizenship but, of course, problems regarding enforcement of judgment may arise, especially if the debtor flees the Philippines.


In proceeding with a conflicts case, the court may encounter different issues such as but not limited to the forum’s convenience (in relation to the doctrine of forum non-conveniens), the invocation of foreign law, proof of foreign law, the proper choice of law, the resolution of a renvoi situation, the determination of the rights and obligations of the parties and the enforcement or recognition of the court’s judgment.

During the stage of joining of issues, the answering party may invoke certain private international law principles in order to prevent the case from proceeding. An example of this is forum non-conveniens; in other words, the party is saying that Philippine courts are not convenient to hear and decide the case. However, it must be pointed out that forum non-conveniens is not a proper ground for a motion to dismiss.

The “stage of joining of issues”[41] refers to the filing of an initiatory pleading by the plaintiff or petitioner in court and the subsequent filing of a responsive pleading or opposition by the defendant or respondent. When, for example, the defendant files an answer to the complaint filed by the plaintiff, issues are joined and the court usually issues an order setting the case for pre-trial.

In the responsive pleading, the answering party may raise as an affirmative defense the existence of forum non conveniens, plead a foreign law, argue the proper choice of law, and/or assert claims or defenses against the allegations of the plaintiff. Forum non convenies and the existence of a foreign, of course, are not standard affirmative defenses. Nonetheless, they may defeat or evade the claims of the plaintiff even if the defendant hypothetically admits the material allegations in the complaint.

To emphasize, the answering party cannot validly or successfully file a motion to dismiss on the ground of an inconvenient forum or on the ground of the applicability of a foreign law. In the eyes of Philippine laws, these matters are factual questions that must properly be threshed out during the trial of the case.

However, after reading the affirmative defenses of the answering party, the court may be inclined to believe that, indeed, it is an inconvenient forum, especially on the basis of evidentiary matters apparent from the pleadings. The court’s possible recourse, if it hopes to resolve this issue with alacrity and swiftness and if it is inclined to sufficiently inform itself of the factual bases of the affirmative defenses, is to set a summary hearing on those defenses. The purpose of such a hearing is to allow the parties to summarily prove or show a basis for or against the issue.

During the summary hearing on the affirmative defense of forum non conveniens, the party claiming such inconvenience must not only prove that the present court is an inconvenient forum but also that there exists an available alternative foreign forum that is more convenient than the court presently hearing the case. The existence of an available alternative foreign forum is important because, if there is no court elsewhere to hear the case, it would be an injustice to the parties and a violation of public policy to deny them access to courts to resolve their disputes.

Of course, different jurisdictions have different approaches to the resolution of the issue of forum non conveniens. For example, in Islamic Republic of Iran v. Pahlavi,[42] the New York Supreme Court held that the district court could “dismiss” the case on forum non conveniens grounds even if there was no available alternative forum. However, through the lenses of Philippine law, it is safe to argue that, considering that jurisdiction is not only a power but also a duty to hear and decide a case, a court cannot simply abdicate its constitutional duty to settle actual controversies by the simple reason that the forum is not convenient. It is also not farfetched to argue that it would be a dereliction of duty on the part of the court to refuse to exercise its jurisdiction without a firm and reasonable basis, especially in view of this jurisdiction’s policy on access to courts.

In the Philippines, there are only four grounds for a motion to dismiss under the present state of the Rules of Court: lack of jurisdiction, prescription, litis pendentia, and res judicata.

Under the old rules, a motion to dismiss may be made on any of the following grounds: (a) that the court has no jurisdiction over the person of the defending party; (b) that the court has no jurisdiction over the subject matter of the claim; (e) that venue is improperly laid; (d) that the plaintiff has no legal capacity to sue; (e) that there is another action pending between the same parties for the same cause; (f) that the cause of action is barred by a prior judgment or by the statute of limitations; (g) that the pleading asserting the claim states no cause of action; (h) that the claim or demand set forth in the plaintiffs pleading has been paid, waived, abandoned, or otherwise extinguished; (i) that the claim on which the action is founded is unenforceable under the provisions of the statute of frauds; and (j) that a condition precedent for filing the claim has not been complied with.

With the advent of the 2019 Amendments to the Rules of Civil Procedure,[43] the only grounds now allowed for a motion to dismiss are: (a) that the court has no jurisdiction over the subject matter of the claim, i.e., lack of subject-matter jurisdiction; (b) that there is another action pending between the same parties for the same cause, i.e., litis pendentia; (c) that the cause of action is barred by a prior judgment or by the statute of limitations, i.e., res judicata; and, (d) that the cause of action is barred by the statute of limitations, i.e., prescription.

As to the other grounds for a motion to dismiss such as lack of jurisdiction over the person of the defending party, improper venue, lack of legal capacity to sue, failure to state a cause of action, payment, waiver, abandonment, extinguishment, unenforceability and failure to comply with condition precedent, these defenses are now relegated to the level of affirmative defenses and no longer have any place in a motion to dismiss. Notice that none of the grounds for a motion to dismiss, either in the old or in the new rules, mentions anything about forum non conveniens or the existence of an applicable foreign law.


The party invoking “forum non-conveniens” may raise such matter as an affirmative defense in his/her responsive pleading, especially because the forum’s convenience is a factual question (question of fact) that requires the introduction of evidence to substantiate the claim of non-convenience.

Proof of an inconvenient forum must show that the present court hearing the case is an inconvenient one and that there exists an available alternative foreign forum that is in a better position to hear and decide the case and to enforce its judgment against the parties. To underline, it is not enough that the present forum is inconvenient; evidence must be adduced that it is so severely inconvenient that another court in another jurisdiction better exercise jurisdiction over the case.

There is a view[44] adopted by Cornell Law School of Cornell University in New York that a court may, sua sponte, find forum non conveniens and refuse to exercise jurisdiction over a conflicts case. However, a closer look at this view from the standpoint of Philippine law, especially taking into account the constitutional power and duty of courts to settle actual controversies, yields a conclusion that this approach cannot be adopted in this jurisdiction. A sua sponte (motu proprio) refusal, without receiving evidence to show inconvenience, may be considered a violation of due process rights.

To be successful in invoking forum non conveniens, the party claiming this may show to the court that pieces of document evidence, object evidence, and testimonial evidence (witnesses) are present only in the territorial jurisdiction of the alternative foreign forum which is in a better position to evaluate evidence, to assess the rights and obligations of parties and, finally, to enforce its own decision. The location of these pieces of evidence and the parties’ access to them may heavily influence the court’s finding of inconvenience.

As to the presence of evidence in the territorial jurisdiction of the alternative forum, the court presently hearing the case may be easily persuaded, especially because the goal of a trial is to comb through factual matters such as documents, objects and statements of witnesses. If these things are beyond the reach of the coercive processes of the court, there is no point in proceeding with the case and the trial would be severely delayed, if not completely hindered, by the fact that the evidence desired by the parties to be presented are not within the subpoena, summons and coercive writs of the present forum.

Within the Philippine legal system, a similar concept exists without relation to private international law. The rule on subpoena[45] states: “Section 10. Exceptions. — The provisions of sections 8 and 9 of this Rule shall not apply to a witness who resides more than one hundred (100) kilometers from his residence to the place where he is to testify by the ordinary course of travel, or to a detention prisoner if no permission of the court in which his case is pending was obtained.” Hence, the coercive process of subpoena, even within Philippine legal system and even without a foreign element involved in the case, has its limitations. In such cases, the remedies usually available to the parties are deposition[46] or change of venue.[47]

Going back to conflict of laws, as to the inconvenience of enforcing its own decision, the court may be justified in finding that it is not an inconvenient forum, especially if the state or jurisdiction in which the local forum’s decision will be recognized or enforced observes the same principles of cooperation, amity and comity that the Philippines adheres to and reciprocates this jurisdiction’s laws on recognition and enforcement of foreign judgments. For example, if the only issue is whether or not the Philippine court can effectively and efficiently enforce its decision against a defendant who is a citizen of Massachusetts residing therein, the court would not be incorrect in asserting its own jurisdiction and to inform the parties that recognition and enforcement of its (Philippine court’s) decision may be sought in Massachusetts. Basically, after all that has been said about forum non conveniens, emphasis must be made on the fact whatever inconvenience the parties may encounter in the trial of the case or in enforcement of the court’s judgment is not an issue of jurisdiction.


Once issues are joined, the court may proceed to issue an order setting the case for pre-trial. During the pre-trial of the case, the parties may stipulate on certain factual matters such as the circumstances surrounding the convenience of the court and the existence of a foreign law.

It must be kept in mind that the forum’s inconvenience and the existence of foreign law are factual matters. Hence, parties may, if they are so inclined, stipulate on these factual issues. This means that the plaintiff and the defendant, for example, may agree that the Spanish Civil Code exists and a certain provision thereof provides that Spanish citizens are not required to observe the law on legitime. The parties may also agree that the forum is an inconvenient one and that there exists an alternative alien forum much better suited to hear and decide a case. These stipulations – agreed statement of facts – are binding upon the parties. They may be a valid basis for the court to take an appropriate action over the case such as but not limited to a refusal to exercise its jurisdiction or to dispense with proof of foreign law.

From a practical standpoint, however, the plaintiff would be in a much better position not to stipulate on the court’s inconvenience. Without such a stipulation, it would naturally be the defendant who will bear the burden of proving the existence of forum non conveniens.

An example of a case where the parties stipulated on the existence of a foreign judgment, which is a question of fact, is Asiavest v. Court of Appeals.[48] In that case, it was stated: “At the pre-trial conference, HERAS admitted the existence of the Hong Kong judgment. On the other hand, ASIAVEST presented evidence to prove rendition, existence, and authentication of the judgment by the proper officials. The judgment is thus presumed to be valid and binding in the country from which it comes, until the contrary is shown.[49] Consequently, the first ground relied upon by ASIAVEST has merit. The presumption of validity accorded foreign judgment would be rendered meaningless were the party seeking to enforce it be required to first establish its validity.”

If parties do not agree on the court’s inconvenience or the existence of foreign law, s/he who alleges must prove the claim; allegata et probata. Hence, without any reason to dismiss the case or to refuse exercise of jurisdiction, the trial will proceed as mandated by the Rules of Court.

The termination of the pre-trial will result in the issuance of a pre-trial order that will control the proceedings of the case, except when the same is amended for good cause. Pre-trials and pre-trial orders are a matter of procedure and pertain to the power and control of the forum over its own proceedings. Again, at the risk of repetition, these procedural matters are within the command of the court hearing the case under the lex fori principle.


Evidence presented during trial may be in the form of documents, also known as pieces of documentary evidence. A document, for example, may purport to show the existence of a foreign law. Such document or documents will be marked during the pre-trial of the case.

Under Section 19 of Rule 132 of the Rules of Court, for the purpose of their presentation in evidence, documents are either public or private. Public documents are: (a) the written official acts, or records of the official acts of the sovereign authority, official bodies and tribunals, and public officers, whether of the Philippines, or of a foreign country; (b) documents acknowledged before a notary public except last wills and testaments; and (c) public records, kept in the Philippines, of private documents required by law to the entered therein. All other writings are private. In relation to this, Section 24 of the same Rule provides that the record of public documents mentioned above, 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/her 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 a 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.

In simpler terms, the party invoking the existence of a foreign law must present, mark, cause to be identified, and offer an official publication or a certificate showing such existence. This certificate must 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/her office. Note that the presentation and marking of documents are done during the pre-trial, while the identification of the document is done during the trial. On the other hand, the formal offer thereof is made after the termination of the party’s last testimonial evidence.

[1] Prévost, E. (2019). Study on forms of liability and jurisdictional issues in the application of civil and administrative defamation laws in Council of Europe member states. Council of Europe, Available at: https://rm. coe. int/study-on-forms-of-liability-and-jurisdictional-issues-in-the-applicati/168096bda9.

[2] Developed by the American legal scholar Brainerd Currie, which began to emerge in the 1950s.

[3] Encyclopædia Britannica (Date unspecified). Choice of law, Encyclopædia Britannica. Available at: Lase accessed: September 07, 2023.

[4] This is known as the doctrine of processual presumption.

[5] Encyclopædia Britannica (Date unspecified). Choice of law, Encyclopædia Britannica. Available at: Lase accessed: September 07, 2023.

[6] Encyclopædia Britannica (Date unspecified). Choice of law, Encyclopædia Britannica. Available at: Lase accessed: September 07, 2023.

[7] Article 8. Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines. (New Civil Code of the Philippines)

[8] G.R. No. 149177, November 23, 2007.

[9] G.R. No. 187847, June 30, 2021.

[10] Pangilinan v. Cayetano, G.R. No. 238875, March 16, 2021.

[11] Pharmaceutical and Health Care Association of the Philippines v. Duque III, 561 Phil. 386, 397-398 (2007) [Per J. Austria-Martinez, En Banc].

[12] David v. Senate Electoral Tribunal, 795 Phil. 529 (2016) [Per J. Leonen, En Banc].

[13] See Mehren, A. T. V., & Trautman, D. T. (1965). The law of multistate problems: cases and materials on conflict of laws; Reese, W. L. (1982). The Law Governing Airplane Accidents. Wash. & Lee L. Rev., 39, 1303.

[14] See, for example, De Lima v. Duterte, G.R. No. 227635, October 15, 2019.

[15] 5 U.S. 137

[16] See Article I of the 1987 Constitution.

[17] Philippine Aluminum Wheels v. Fasgi Enterprises, Inc., G.R. No. 137378, 12 October 2000, 342 SCRA 722, 734, citing Jovito R Salonga, Rex Bookstore, Manila, Philippines, 1995 Edition, p. 543, both cited in Mijares v. Randa, G.R. No. 139325, April 12, 2005.

[18] 159 U.S. 113 (1895), cited in Mijares v. Randa, G.R. No. 139325, April 12, 2005.

[19] 47 Phil. 189 (1925), cited in Mijares v. Randa, G.R. No. 139325, April 12, 2005.. While the Philippine Supreme Court in this case refused to enforce the judgment of the Hongkong Court on the ground of mistake of law or fact, it was reversed on appeal to the US Supreme Court.

[20] JJ. Malcolm and Avanceña, dissenting in 47 Phil. 189 (1925), as cited in cited in Mijares v. Randa, G.R. No. 139325, April 12, 2005.

[21] G.R. No. 221029, April 24, 2018.

[22] 156 Ariz. 46 (Ariz. 1988).

[23] Wilcox v. Wilcox, 26 Wis. 2d 617, 635 (Wis. 1965).

[24] Wilcox v. Wilcox, 26 Wis. 2d 617, 628 (Wis. 1965).

[25] 26 Wis. 2d 617 (Wis. 1965).

[26] Wilcox v. Wilcox, 26 Wis. 2d 617, 631 (Wis. 1965).

[27] See, for example, Continental Micronesia v. Joseph Basso, G.R. Nos. 178382-83, September 23, 2015.

[28] See the discussion in Bernardo, C. (2021, March 11). The unpredictability of Florida’s supposedly predictable choice-of-law test. Butler Weihmuller Katz Craig LLP; Butler Weihmuller Katz Craig, LLP. Last accessed: September 02, 2023.

[29] See the discussion in Bernardo, C. (2021, March 11). The unpredictability of Florida’s supposedly predictable choice-of-law test. Butler Weihmuller Katz Craig LLP; Butler Weihmuller Katz Craig, LLP. Last accessed: September 02, 2023.

[30] Saudi Arabian Airlines v. Court of Appeals, G.R. No. 122191, October 8, 1998, cited in Continental Micronesia v. Basso, G.R. NOS. 178382-83, September 23, 2015.

[31] Saudia v. Court of Appeals, G.R. No. 122191, October 8, 1998, citing Salonga, Private International Law, 1995 edition, p. 3.

[32] Saudia v. Court of Appeals, G.R. No. 122191, October 8, 1998, citing Salonga, Private International Law, 1995 edition, p. 3.

[33] G.R. No. 94723, August 21, 1997.

[34] Republic v. Manalo, G.R. No. 221029, April 24, 2018.

[35] Convention for the Unification of Certain Rules for International Carriage by Air.

[36] Article 1 of the Warsaw Convention.

[37] Mentioned in passing in Tañada v. Cuenco, G.R. No. L-10520, February 28, 1957.

[38] See also COURAGE v. Secretary Abad, G.R. No. 200418, November 10, 2020.

[39] Shaffer v. Heitner, 433 U.S. 186, 215; 97 S.Ct. 2569, 2585 (1977), citing Justice Black's Dissenting Opinion in Hanson v. Denckla, 357 U.S. 235, 258; 78 S. Ct. 1228, 1242 (1958). Also cited in Hasegawa v. kitamura, g.r. 149177, 23 November 2007.

[40] Which is within the jurisdiction of the Municipal Trial Courts (MTCs) under Batas Pambansa Blg. 129, as amended by Republic Act No. 11576, July 30, 2021, Section 2 of the latter amending Section 33 of the former.

[41] Ong v. Gaite, G.R. No. L-20887. July 8, 1966, citing Navarro v. Bello, 54 Off. Gaz., 6588.

[42] 467 N.E.2d 245 (N.Y. 1984).

[43] A.M. No. 19-10-20-SC.

[44] Cornell Law School. Date unspecified. “forum non conveniens.” Last accessed: August 28, 2023 at 11:20 PM.

[45] Rule 21 of the Rules of Court.

[46] Under Rule 23 and Rule 24 of the Rules of Court.

[47] Section 5 of Article VIII of 1987 Constitution, which says: Section 5. The Supreme Court shall have the following powers: (d) Order a change of venue or place of trial to avoid a miscarriage of justice. This is the basis of Office of the Court Administrator (OCA) Circular No. 162-2022, July 01, 2022.

[48] G.R. No. 128803, September 25, 1998, 357 Phil. 536.

[49] Citing Northwest Orient Airlines, Inc. v. Court of Appeals, 241 SCRA 192, 199 [1995].