PHILIPPINE LAW’S REFERENCE TO THE APPLICATION OF FOREIGN LAW - 35 PJP 21

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  1. RECOMMENDED CITATION: DELA PEÑA, Mark Angelo S. (2024), “Philippine Law’s Reference to the Application of Foreign Law,” 35 PJP 21, available at <insert link> (last accessed on <date>).
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Municipal law’s reference to the application of foreign law is not always straightforward. Students will not find any provision of municipal law that says: “apply foreign law” or some such direct language. Often, some analysis is required to realize that former calls for the application of the latter.

For example, Article 819 of the NCC says: “Wills, prohibited by the preceding article, executed by Filipinos in a foreign country shall not be valid in the Philippines, even though authorized by the laws of the country where they may have been executed.” This is in relation to Article 818 of the same Code which says: “Two or more persons cannot make a will jointly, or in the same instrument, either for their reciprocal benefit or for the benefit of a third person.”

In the cited provision, it appears that there is a clash between the lex nationalii rule and the lex loci celebrationis rule.

As a general rule, the forms and solemnities of wills, contracts, and other public instruments shall be governed by the law of the country where the same are executed, pursuant to Article 17 of the NCC. However, here is Article 819 of the NCC mandating the same nationality principle under Article 15 of the NCC to the form of joint wills.

Other provisions are a bit more direct but still not specific enough. Article 15 of the NCC, for instance, provides: “Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.” This provision may appear to be referring to Filipinos only but it has been interpreted by the Supreme Court to refer to foreigners as well. Hence, the rule on lex nationalii applies to non-Filipinos even though they are living outside the territorial jurisdiction of their home state.

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