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Civil Law
SUMMER REVIEWER
—
Adviser:
Dean Cynthia del Castillo
Head:
Joy Ponsaran, Eleanor Mateo
; Understudy:
Joy Tajan, John Paul Lim;
Subject Head:
Laarni Pichay
;
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CONFLICT OF LAWSCHAPTER 1: GENERAL PROVISIONSPRIVATE INTERNATIONAL LAW
•
That part of the law of each State or nation whichdetermines whether, in dealing with a legalsituation, the law or some other State or nationwill be recognized, given effect, or applied (16Am Jur, 2d, Conflict of Laws, §1).
•
That part of municipal law of a State whichdirects its courts and administrative agencies,when confronted with a legal problem involving aforeign element, whether or not they should applya foreign law/s (Paras).
•
NOTE:
A factual
situation that cuts acrossterritorial lines and is affected by diverse laws oftwo or more States is said to contain a foreignelement.
FUNCTIONS OF CONFLICT OF LAW RULES
1. To proscribe the conditions under which a courtor agency is competent to entertain a suit orproceeding involving facts containing a foreignelement;2. To determine the extent, validity andenforceability of foreign judgment3. To determine for each class of cases theparticular system if law by reference to which therights of the parties must be ascertained
DISTINGUISHED FROM PUBLIC INTERNATIONALLAWB
ASIS
C
ONFLICT OFLAW
L
AW OF
N
ATIONS
Nature
Municipal incharacterInternational incharacter
Personsinvolved
Dealt with byprivateindividuals;governsindividuals intheir privatetransactionswhich involvea foreignelementSovereign Statesand other entitiespossessinginternationalpersonality, e.g.,UN; governsStates in theirrelationshipsamongstthemselves
Transac-tionsinvolved
PrivatetransactionsbetweenprivateindividualsGenerally affectedby public interest;those in generalare of interest onlyto sovereignStates
RemediesandSanctions
Resort tomunicipaltribunalsMay be peacefulor forciblePeaceful: includesdiplomaticnegotiation, tender& exercise of goodoffices, mediation,inquiry &conciliation,arbitration, judicialsettlement by ICJ,reference toregional agenciesForcible: includesseverance ofdiplomaticrelations,retorsions,reprisals,embargo, boycott,non-intercourse,pacific blockades,collectivemeasures underthe UN Charter,and war.
Sources
Generallyderived fromthe internallaw of thestate; exceptany conflict oflaw questiongoverned bya treatyCustom, Treatyand GeneralPrinciples of law,recognized bycivilized nationsand juridicaldecisions andteachings of themost highlyqualified publicists
SOURCES OF CONFLICT OF LAWSDirect Indirect
Constitutions Natural Moral LawCodifications Work of WritersSpecial LawsInternational Customs
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Treatises andInternationalConventionsJudicial Decisions
DEFINITION OF TERMS:
1.
Lex Domicilii-
law of the domicile; in conflicts,the law of one's domicile applied in the choice oflaw questions.2.
Lex Fori
- law of the forum; that is, the positivelaw of the State, country or jurisdiction of whose judicial system the suit is brought or remedy issought. Substantive rights are determined by thelaw where the action arose (
lex loci
) while theprocedural rights are governed by the law of theplace of the forum (
lex fori
)3.
Lex Loci -
law of the place4.
Lex Loci Contractus -
the law of the placewhere the contract was made or law of the placewhere the contract is to be governed (place ofperformance) which may or may not be the sameas that of the place where it was made5.
Lex Loci Rei Sitae -
law of the place where thething or subject matter is situated; the title torealty or question of real estate law can beaffected only by the law of the place where it issituated6.
Lex Situs -
law of the place where property issituated; the general rule is that real property isgoverned by the law of the State where it issituated7.
Lex Loci Actus -
law of the place where the actwas done8.
Lex Loci Celebrationis -
law of the place wherethe contract is made9.
Lex Loci Solutionis -
law of the place ofsolution; the law of the place where payment orperformance of a contract is to be made10.
Lex Loci Delicti Comissi -
law of the placewhere the crime took place11.
Lex Mercatoria -
law merchant/commercial law;system of laws adopted by all commercial nationsand constitute as part of the law of the land; partof common law12.
Lex Non Scripta
- the unwritten common law,which includes general and particular customsand particular local law13.
Lex Patriae -
national law14.
Depecage –
where different aspects of a caseinvolving a foreign element may be governed bydifferent systems of law
15.
Renvoi Doctrine -
doctrine whereby a juralmatter is presented which the conflict of lawsrules of the forum refer to a foreign law which inturn, refers the matter back to the law of theforum or a third State. When reference is madeback to the law of the
forum, this is said to be
remission,
while reference to a third State iscalled
transmission.
16.
Double Renvoi
–
occurs when the local court, inadopting the foreign court theory, discovers thatthe foreign court accepts the renvoi; ultimatelythen, it is the foreign internal law that will be used17.
Desistment –
mutual disclaimer of jurisdiction18.
Foreign Court Theory –
the local forum, indeciding the case, will put itself in the position ofthe foreign court, and whatever the foreign courtwill do respecting the case, the local forum willlikewise do19.
Nationality Theory
-
by virtue of which the statusand capacity of an individual are generallygoverned by the law of his nationality. This isprincipally adopted in the RP.20.
Domiciliary Theory -
in general, the status,condition, rights, obligations, & capacity of aperson should be governed by the law of hisdomicile.21.
Long Arm Statutes -
statutes allowing the courtsto exercise jurisdiction when there are minimumcontacts between the non-resident defendantand the forum.
CHAPTER 2: JURISDICTION
•
In international law, it is often defined as the rightof a State to exercise authority over persons andthings within its boundaries, subject to certainexceptions.
JURISDICTION OVER THE PERSON
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1. Jurisdiction over the person of the
plaintiff
isacquired from the moment he invokes the aid ofthe court and voluntarily submits himself byinstitution of the suit through proper pleadings2. Jurisdiction over the person of the defendant isacquired through:a. Voluntary appearance orb. Personal or Substituted service of summons
JURISDICTION OVER PROPERTY
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Results either from seizure of the property undera legal process or from the institution of legalproceedings wherein the court’s power over theproperty is recognized and made effective.
•
This kind of jurisdiction of jurisdiction is referredto as
in rem
jurisdiction. Another form of jurisdiction is
quasi in rem
which affects only theinterests of particular persons in the thing.
•
NOTE:
Summons by publication is authorized inthree cases
:
1. If the action is in rem2. quasi in rem3. Involves the personal status of the plaintiff
MINIMUM CONTACTS TEST AND FUNDAMENTALFAIRNESS TEST
•
Due process requires only that in order to subjecta defendant to a judgment
in personam,
if he isnot present within the territory of the forum heshould have certain minimum contacts with itsuch that the maintenance of the suit does notoffend traditional notions fair play and substantial justice.
•
In both in rem and quasi-in rem, all that dueprocess requires is that defendant be givenadequate notice and opportunity to be heardwhich are met by service of summons bypublication.
LONG-ARM STATUTES
•
Statutes which specify the kinds of contactswhich jurisdiction will be asserted over adefendant outside of state territory.
JURISDICTION OVER THE SUBJECT MATTER
•
Jurisdiction over the subject matter is conferredby law
CHAPTER 3: WAYS OF DISPOSING CONFLICTSCASES1. DISMISS THE CASE FOR LACK OFJURISDICTION2. DISMISS THE CASE ON THE GROUND OF
FORUM NON-CONVENIENS
.DOCTRINE OF FORUM NON-CONVENIENS
•
A forum may resist imposition upon its jurisdictioneven when jurisdiction is authorized by law on theground that the forum is inconvenient or the endsof justice would be best served by trial in anotherforum or the controversy may be more suitablytried elsewhere
•
ELEMENTS
a.
The forum State is one to which the partiesmay conveniently resort to;
b.
It is in a position to make an intelligentdecision as to the law and the facts; and
c.
It has or is likely to have power to enforce itsdecision.
3. ASSUME JURISDICTION AND APPLY THEFORUM LAWINSTANCES WHEN INTERNAL LAW SHOULD BEAPPLIED:
a.
A specific law of the forum decrees that internallaw should apply
•
EXAMPLES:
i. Article. 16 of the Civil Code - real andpersonal property subject to the law of thecountry where they are situated andtestamentary succession governed by lexnationaliiii. Article 829 of the Civil Code - makesrevocation done outside Philippines validaccording to law of the place where will wasmade or lex domiciliiiii. Article 819 of the Civil Code - prohibitsFilipinos from making joint wills even if validin foreign country
b.
The proper foreign law was not properly pleadedand proved
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NOTE:
As a general rule, courts do not take judicial notice of foreign laws; foreign laws mustbe pleaded and proved
•
The following actions may be resorted in case of
of 00
Conflict of Laws
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thanky! thanky! preparing to enter law school. need lots of reading materials:))