ARTICLE 17: The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed.
When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by Philippine laws shall be observed in their execution.
Prohibitive laws concerning persons, their acts or property, and those which have, for their object, public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country. (11a)
source: -salt-and-light-.blogspot.com
Explanation/Discussion:
(1) Doctrine of lex loci celebrationis
The first paragraph of the article lays down the rule of lex loci celebrationis insofar as intrinsic validity (forms and solemnities) is concerned.
(2) Formalities for the acquisition, encumbering, or alienation of property
Formalities of acquisition, encumbering and alienation of property (whether real or personal) shall however, be governed not by the lex loci celebrationis but by the lex rei sitae.
Example:
In Japan, a Chinese sold to a Filipino a parcel of land located in the Philippines. The law of which country governs the formalities of the sale?
ANSWER: The law of the Philippines because the land is located here. This is an exception to lex loci celebrationis.
(3) Rule of exterritoriality
Even if the act be done abroad, still if executed before Philippine diplomatic and consular officials, the solemnities of Philippine law shall be observed. The theory is that the act is being done within an extension of Philippine territory.
(4) Rule respecting prohibitive laws
The third paragraph gives one exception to the rule that a foreign law, contract, or judgment can be given effect. The reason is that public policy in the Philippines prohibits the same.
Examples:
a. A contract for the sale of human flesh (prostitution) even if valid where made cannot be given effect in the Philippines.
b. An absolute divorced granted Filipinos abroad even if valid where given cannot be recognized in the Philippines in as much as under the civil code, absolute divorced is prohibited (except insofar as Mohammedan Filipinos are concerned).
c. A U.S. court allowed a mother living with a man other than her husband to exercise authority over her child with the lawful husband. It was held by our supreme court that such a decision cannot be enforced in the Philippines. The rule is the same today except that in case of separation of his parents, no child under five years of age shall be separated from his mother, unless the court finds compelling reasons to do so. Even the commission of adultery, according to the code commission, is not a compelling reason.
(5) Intrinsic validity of contracts
It should be noted that while the first paragraph of art.17 speaks of forms and solemnities, no mention is made of the law that should govern the intrinsic validity of contracts in general. The prevailing rule in private international law today is to consider the lex loci voluntatis (the law of the place voluntarily selected) or the lex loci intentionis (the law of the place intended by the parties to the contract).
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