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Conflict of Laws - For Printing

Conflict of Laws - For Printing

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Published by lawyerwannabe

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Published by: lawyerwannabe on Oct 13, 2009
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03/07/2013

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PINK NOTES:
Rinchel’s guide to pass your law subjectsCONFLICTS OF LAWSConflicts of law
- Part of international law which deals with legal problemsinvolving foreign element concerning the conflict in the application of local andforeign laws, raised in a proper forum.That part of municipal law of a state which directs its courts and administrativeagencies, when confronted with a legal problem involving a foreign element,whether or not they should apply a foreign law/s (Paras).
Elements
I. Legal problem involving foreign element—--If there is no foreign element, there is no conflict of law.Foreign elements is a factual situation that cut across territorial lines and affectedby diverse laws of two or more states -- Saudia vs Morada1. One or both litigant is alien2. Cause of action arises in foreign state- location of the res- place of celebration- place of the act- place of the crimeII. Assumption of the proper forumCases involving COL, forum may:1. Refuse - apply forum non conviniens, no COL2. Assume- forum may apply the following:a. local law -- lex forib. Foreign law - lex causaec -- apply both -- Cadalin vs POEAIII. Conflict between local and foreign law- if there is no conflict between the two, there is nothing to resolve.- court can apply foreign law if properly pleaded and proved, applicationdiscretionary to the court.IV. Choice of law to be applied-Which law applies? - depends on the factual situation and connection of the foreign element, apply characterization process of determining under whatcategory a certain set of facts or rules falls.- Purpose - to enable the forum to select the proper law.
SOURCES of COL
Direct sourcesArt. 14, 15, 16, 1039, 1183, 1347 at marami paArticle 26 of Family CodeSection 129 of Corporation CodeTreaties - Hague convention, Warsaw, COGSAJurisprudenceInternational CustomGeneral Principles of lawlex loci celebrationisLEx loci actusLEx rei sitae/lex situs
 
PINK NOTES:
Rinchel’s guide to pass your law subjectsCONFLICTS OF LAWS
lex loci delictuslex loci contractuslex domicilliprinciple of territorialityKilberg doctrineIndirect sourcesforeign jurisprudence journal of renowned legal writers.
OPTION OF FORUM IN CASE OF COL
1. Refuse - to do so would provide inconvenience to the forum- if the only link is one of the respondent is a Filipino Citizen - MHC vsNLRC- not all cases involving Filipino can be tried in local forum.2. Assume jurisdiction - exercise of Sovereign Prerogative, if the court has jurisdiction of over the:a. resb. Subject matter c. person- court has discretion to proceed on the case.
REQUISITE OF ASSUMPTION of JURISDICTION
1. The Philippine court is one to which the parties may conveniently resolve;2. That the Philippine court is in the position to make an intelligent decision as tothe laws and facts3. The Philippine court has likely to have the power to enforce the decision -MHC vs. NLRC
COURT MAY APPLY
1. Local law - aznar vs. GARcia2. Foreign law - Bellis vs BEllis3. Apply both - Cadalin vs .POEA
CHOICE OF LAW
-depends on the factual situation - different case, different application of law.- there is no hard rule in the application of law.- Foreign law has no extra-territorial effect- General Rulethere is an exception1. JUSTIFICATION OF APPLICATION OF LOCAL LAWSa. matter involving procedural law - apply law of the forum -based on lexforib. if foreign law is contrary to public policy of the forumc. If application of foreign law or local law which give rights to the foreigner would result injustice to our national - salvacion vs BCPd. When court accept the renvoir - aznar vs garciae. when most of the factual situation referes to phil jurisdiction- saudia vsmorada.
 
PINK NOTES:
Rinchel’s guide to pass your law subjectsCONFLICTS OF LAWS
JUSTIFICATION OF APPLYING FOREIGN LAWS1. When cause of action arises in foreign land.2. If local law so provides - article 16, Bellis vs Bellis - lex domicilli3. Principle of ComityNote - Foreign law should be pleaded and proved , if not , presumed to be thesame with the local law - DOCTRINE OF PROCESSUAL PRESUMPTION4. If There Is A Treaty - Warsaw, Santos Vs Northwest Orient Airline
DISTINGUISHED FROM PUBLIC INTERNATIONAL LAW
BASISCONFLICT OF LAWLAW OF NATIONS1NatureMunicipal in characterInternational in characte2PersonsinvolvedDealt with by privateindividuals; governsindividuals in their privatetransactions which involve aforeign elementSovereign states and other entities possessinginternational personality, e.g.,UN; governs states in their relationships amongstthemselves3TransactionsinvolvedPrivate transactions betweenprivate individualsGenerally affected by publicinterest; those in general areof interest only to sovereignstates4RemediesandSanctionsResort to municipal tribunalsMay be peaceful or forciblePeaceful: includes diplomaticnegotiation, tender & exerciseof good offices, mediation,inquiry & conciliation,arbitration, judicial settlementby ICJ, reference to regionalagenciesForcible: includes severanceof diplomatic relations,retorsions, reprisals,embargo, boycott, non-intercourse, pacificblockades, collectivemeasures under the UNCharter, and war.

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