CONFLICTS OF LAWS; DEFINITION: 1.

That part of the law of each state or nation which determines whether, in dealing with a legal situation, the law or some other state or nation will be recognized, given effect, or applied (16 Am Jur, d, !onflict of "aws, #1$. . That part of municipal law of a state which directs its courts and administrative agencies, when confronted with a legal problem involving a foreign element, whether or not the% should appl% a foreign law&s ('aras$. DISTINGUISHED FROM PUBLIC INTERNATIONAL LAW (A)*) 1 ,ature 'ersons involved !+,-"*!T +- "A. /unicipal in character 0ealt with b% private individuals1 governs individuals in their private transactions which involve a foreign element 'rivate transactions between private individuals 6esort to municipal tribunals "A. +- ,AT*+,) *nternational in character )overeign states and other entities possessing international personalit%, e.g., 2,1 governs states in their relationships amongst themselves 4enerall% affected b% public interest1 those in general are of interest onl% to sovereign states /a% be peaceful or forcible 'eaceful: includes diplomatic negotiation, tender 7 e8ercise of good offices, mediation, in9uir% 7 conciliation, arbitration, :udicial settlement b% *!J, reference to regional agencies -orcible: includes severance of diplomatic relations, retorsions, reprisals, embargo, bo%cott, non;intercourse, pacific bloc<ades, collective measures under the 2, !harter, and war.

3 Transactions involved 5 6emedies and )anctions

SOURCES: 0*6=!T: 1. !onstitutions . !odifications 3. )pecial "aws 5. Treaties and !onventions >. Judicial 0ecisions 6. *nternational !ustoms *,0*6=!T: 1. ,atural moral law . .or< of writers TERMS: LEX DOMICILII ; law of the domicile1 in conflicts, the law of one?s domicile applied in the choice of law 9uestions LEX FORI ; law of the forum1 that is, the positive law of the state, countr% or :urisdiction of whose :udicial s%stem of the court where the suit is brought or remed% is sought is an integral part. )ubstantive rights are determined b% the law where the action arose ( lex loci$ while the procedural rights are governed b% the law of the place of the forum ( lex fori$ LEX LOCI ; law of the place

LEX LOCI CONTRACTUS ; the law of the place where the contract was made or law of the place where the contract is to be governed (place of performance$ which ma% or ma% not be the same as that of the place where it was made LEX LOCI REI SITAE ; law of the place where the thing or sub:ect matter is situated1 the title to realt% or 9uestion of real estate law can be affected onl% b% the law of the place where it is situated LEX SITUS ; law of the place where propert% is situated1 the general rule is that lands and other immovables are governed b% the law of the state where the% are situated LEX LOCI ACTUS ; law of the place where the act was done LEX LOCI CELEBRATIONIS ; law of the place where the contract is made LEX LOCI SOLUTIONIS ; law of the place of solution1 the law of the place where pa%ment or performance of a contract is to be made LEX LOCI DELICTI COMMISSI ; law of the place where the crime too< place LEX MEREATORIA ; law merchant1 commercial law1 that s%stem of laws which is adopted b% all commercial nations and constitute as part of the law of the land1 part of common law LEX NON SCRIPTA ; the unwritten common law, which includes general and particular customs and particular local laws LEX PATRIAE ; national law RENVOI DOCTRINE ; doctrine whereb% a :ural matter is presented which the conflict of laws rules of the forum refer to a foreign law which in turn, refers the matter bac< to the law of the forum or a third state. .hen reference is made bac< to the law of the forum, this is said to be @remission@ while reference to a third state is called @transmission.@ NATIONALITY THEORY - b% virtue of which the status and capacit% of an individual are generall% governed b% the law of his nationalit%. This is principall% adopted in the 6' DOMICILIARY THEORY ; in general, the status, condition, rights, obligations, 7 capacit% of a person should be governed b% the law of his domicile. LONG ARM STATUTES ; )tatutes allowing the courts to e8ercise :urisdiction when there are minimum contacts between the non;resident defendant and the forum. WAYS OF DEALING WITH A CONFLICTS PROBLEM: 1. 0ismiss the case for lac< of :urisdiction, or on the ground of forum non;conveniens DOCTRINE OF FORUM NON CONVENIENS ; the forum is inconvenient1 the ends of :ustice would be best served b% trial in another forum1 the controvers% ma% be more suitabl% tried elsewhere . Assume :urisdiction and appl% either the law of the forum or of another state a. APPLY INTERNAL LAW ; forum law should be applied whenever there is good reason to do so1 there is a good reason when an% one of the following factors is present: i. A specific !" #f $%e f#&'( )ec&ees $%!$ i*$e&*! !" s%#' ) !pp + Examples: Article. 16 of the !ivil !ode ; real and personal propert% sub:ect to the law of the countr% where the% are situated and testamentar% succession governed b% lex nationalii Article A B of the !ivil !ode ; ma<es revocation done outside 'hilippines valid according to law of the place where will was made or lex domicilii Article A1B of the !ivil !ode ; prohibits -ilipinos from ma<ing :oint wills even if valid in foreign countr% ii. T%e p&#pe& f#&ei,* !" "!s *#$ p&#pe& + p e!)e) !*) p&#-e)

NOTICE AND PROOF OF FOREIGN LA As a general rule, courts do not ta<e :udicial notice of foreign laws1 -oreign laws must be pleaded and proved =ffect of failure to plead and prove foreign law (3 alternatives$ of the forum court: (a$ 0ismiss the case for inabilit% to establish cause of action (b$ Assume that the foreign law of the same as the law of the forum (c$ Appl% the law of the forum iii. T%e c!se f! s '*)e& !*+ #f $%e e.cep$i#*s $# $%e !pp ic!$i#* #f f#&ei,* !" Exceptions to application of forei!n la": (a$ The foreign law is contrar% to the public polic% of the forum (b$ The foreign law is procedural in nature (c$ The case involves issues related to propert%, real or personal (le8 situs$ (d$ The issue involved in the enforcement of foreign claim is fiscal or administrative (e$ The foreign law or :udgment is contrar% to good morals (contra #onos mores$ (f$ The foreign law is penal in character (g$ .hen application of the foreign law ma% wor< undeniable in:ustice to the citizens of the forum (h$ .hen application of the foreign law might endanger the vital interest of the state b. APPLY FOREIGN LAW / when properl% pleaded and proved THEORIES WHY FOREIGN LAW SHOULD BE GIVEN EFFECT 1. T%e#&+ #f C#(i$+ C foreign law is applied because of its con$enience 7 because we want to give protection to our citizens, residents, 7 transients in our land . T%e#&+ #f Ves$e) Ri,%$s C we see< to enforce not foreign law itself but the rights that have been vested under such foreign law1 an act done in another state ma% give rise to the e8istence of a right if the laws of that state crated such right. 3. T%e#&+ #f L#c! L!"; adherents of this school of thought believe that we appl% foreign law not because it is foreign, but because our laws, b% appl%ing similar rules, re9uire us to do so1 hence, it is as if the foreign law has become part 7 parcel of our local law 5. T%e#&+ #f H!&(#*+ #f L!"s C theorists here insist that in man% cases we have to appl% the foreign laws so that wherever a case is decided, that is, irrespective of the forum, the solution should be appro8imatel% the same1 thus, identical or similar solutions an%where 7 ever%where. .hen the goal is realized, there will be Dharmon% of lawsE >. T%e#&+ #f 0's$ice C the purpose of all laws, including !onflict of "aws, is the dispensing of :ustice1 if this can be attained in ma% cases appl%ing the proper foreign law, we must do so RULES ON STATUS IN GENERAL -A!T2A" )*T2AT*+, 1 (eginning of personalit% of natural person .a%s 7 effects of emancipation 3 Age of ma:orit% 5 2se of names and surnames > 2se of titles of nobilit% 6 Absence F 'resumptive death 7 survivorship '+*,T +- !+,TA!T ,ational law of the child (Article 1>, !!$ )ame )ame )ame )ame )ame Lex fori (Article 53, 3BG, 3B1, !!1 6ule 131 #> H::I, 6ules of !ourt$

!elebrated Abroad

RULES ON MARRIAGE AS A CONTRACT -A!T2A" )*T2AT*+, (etween -ilipinos

(etween -oreigners

!elebrated in 6'

/i8ed (etween -oreigners

'+*,T +- !+,TA!T Lex loci cele#rationis is without pre:udice to the e8ceptions under Articles >, 3> (1, 5, > 7 6$, 36, 3F 7 3A of the -amil% !ode (bigamous 7 incestuous marriages$ 7 consular marriages Lex loci cele#rationis E%CEPT if the marriage is: a. Jighl% immoral (li<e bigamous& pol%gamous marriages$ b. 2niversall% considered incestuous (between brother;sister, and ascendants;descendants$ Appl% 1 (b$ to uphold validit% of marriage ,ational law (Article 1, -!$ '6+K*0=0 the marriage is not highl% immoral or universall% considered incestuous$ ,ational law of -ilipino (otherwise public polic% ma% be militated against$

/i8ed

/arriage b% pro8% (NOTE: a marriage Lex loci cele#rationis (with pre:udice to b% pro8% is considered celebrated where the foregoing rules$ the pro8% appears RULES ON MARRIAGE AS A STATUS -A!T2A" )*T2AT*+, 1 'ersonal rights 7 obligations between husband 7 wife '+*,T +- !+,TA!T ,ational of husband (Note: =ffect of subse9uent change of nationalit%: a. *f both will have a new nationalit% C the new one b. *f onl% one will change C the last common nationalit% c. *f no common nationalit% C nationalit% of husband at the time of wedding$ ,ational law of husband without pre:udice to what the !! provides concerning 6=A" propert% located in the 6' (Article AG$ (NOTE: !hange of nationalit% has ,+ =--=!T. This is the DOCTRINE OF IMMUTABILITY IN THE MATRIMONIAL PROPERTY REGIME1

'ropert% relations bet husband 7 wife

Exceptions

RULES ON PROPERTY -A!T2A" )*T2AT*+, 6=A" '6+'=6TL )uccessional rights !apacit% to succeed !ontracts involving real propert% which do not deal with the title thereto !ontracts where the real propert% is given as securit%

'+*,T +- !+,TA!T Lex rei sitae (Article 16, !!$ ,ational law of decedent (Article 16 par. , !!$ ,ational law of decedent (Article. 1G3B$ The law intended will be the proper law of the contract (lex loci $ol&ntantis or lex loci intentionis$

The principal contract (usuall% loan$ is governed b% the proper law oft the contract C (lex loci $ol&ntatis or lex loci intentionis$ NOTE: the mortgage itself is governed b% lex rei sitae. There is a possibilit% that the principal contract is valid but the mortgage is void1 or it ma% be the other wa% around. *f the principal contract is void, the mortgage will also be void (for lac< of proper cause or consideration$, although b% itself, the mortgage could have been valid. TA,4*("= '=6)+,A" '6+'=6TL (!J+)=) *, '+))=))*+,$ 1 *, 4=,=6A" "e8 rei sitae (Article. 16, !!$ Exceptions: same as those for real propert% /=A,) +- T6A,)'+6TAT*+, Kessels +ther means 3 TJ*,4) *, TRAN'IT( (TJ=)= TJ*,4) JAK=
A !JA,4*,4 )TAT2) (=!A2)= TJ=L /+K=$

E%CEPTION: same as those for real propert% =M!='T that in the e8ample concerning mortgage, the same must be changed to pledge of personal propert%$ "aw of the flag (or in some cases, place of registr%$ "aw of the depot (storage place for supplies or resting place$

"oss, destruction, deterioration Kalidit% 7 effect of the seizure of the goods 0isposition or alienage of the goods

"aw of the destination (Article. 1F>3, !!$ Loc&s re!it act&m (where seized$ C because said place is their temporar% sit&s Lex loci $ol&tantis or lex loci intentionis C because here there is a contract

-A!T2A" )*T2AT*+, *,TA,4*("= '=6)+,A" '6+'=6TL (!J+)=) *, A!T*+,$ 1 6ecover% of debts or involuntar% assignment of debts (garnishment$ Koluntar% assignment of debts

'+*,T +- !+,TA!T .here debtor ma% be effectivel% served with summons (usuall% the domicile$ Lex loci $ol&ntatis or lex loci intentionis (proper law of the contract$

3 5 >

6 F A

B 1G 11 1 13

+TJ=6 TJ=+6*=): a. ,ational law of the debtor or creditor b. 0omicile of the debtor or creditor c) Lex loci cele#rationis d) Lex loci sol&tionis Ta8ation of debts 0omicile of creditor Administration of debts Lex sit&s of assets of the debtor (for these assets can be held liable for the debts$ ,egotiabilit% or non;negotiabilit% of an The right embodied in the instrument (for instrument e8ample, in the case of a )wedish bill of e8change, )wedish law determines its negotiabilit%$ Kalidit% of transfer, deliver% or *n general, situs of the instrument at the negotiation of the instrument time of transfer, deliver% or negotiation =ffect on a corporation of the sale of "aw of the place incorporation corporate shares =ffect between the parties of the sale of "e8 loci voluntatis or le8 loci intentionis corporate shares (proper law of the contract$ C for this is reall% a contract1 usuall% this is the place where the certificate is delivered$ Ta8ation on the dividends of corporate "aw of the place of incorporation shares Ta8ation on the income from the sale of "aw of the place where the sale was corporate shares consummated -ranchises "aw of the place that granted them 4oodwill of the business 7 ta8ation "aw of the place where the business is thereto carried on 'atents, cop%rights, trademar<s, trade *n the absence of a treat%, the% are names protected onl% b% the state that granted them NOTE: foreigners ma% sue for infringement of trademar<s and trade names in the 6' +,"L *- -ilipinos are granted reciprocal concessions in the state of the foreigners

Wi s2 S'ccessi#* 3 A)(i*is$&!$i#* #f C#*f ic$ R' es -A!T2A" )*T2AT*+, '+*,T +- !+,TA!T =MT6*,)*! KA"*0*TL +- .*"") 1 /ade b% an alien abroad Lex nationalii +6 lex domicilii +6 6' law (Article A16, !!$, +6 lex loci cele#rationis (Article 1F(1$$ /ade b% a -ilipino abroad Lex nationalii +6 lex loci cele#rationis (Article A1>$ 3 /ade b% an alien in the 6' Lex nationalii +6 lex loci cele#rationis (Article A1F$

-A!T2A" )*T2AT*+, =MT6*,)*! KA"*0*TL +- J+*,T .*"") (/A0= *, TJ= )A/= *,)T62/=,T$ 1 /ade b% -ilipinos abroad /ade b% aliens abroad 3 /ade b% aliens in the 6'

'+*,T +- !+,TA!T Lex nationalii (void, even if valid where made$ (Article A1B$ Kalid if valid according to lex domicilii or lex loci cele#rationis (Article A1B$ Lex loci cele#rationis therefore void even if apparentl% allowed b% Article A1F because the prohibition on :oint wills is a clear e8pression of public polic% Lex nationalii of the deceased C regardless of the "+!AT*+, 7 ,AT26= of the propert% (Article 16 ( $$ Lex nationalii of the deceased C not of the heir (Article 1G3B$ Lex loci act&s (of the revocation$ (Article. A B$ Lex loci cele#rationis (of the ma<ing of the will, ,+T revocation$, +6 lex domicilii (Article A B$ Lex domicilii (6' law$ +6 lex loci act&s (of the revocation$ (Article 1F$ Lex fori of the 6' applies as to the procedural aspects, i)e), the will must be full% probated here 7 due e8ecution must be shown Lex fori of the 6' again applies as to the procedural aspects1 must also be probated here, but instead of proving due e8ecution, generall% it is enough to as< for the enforcement here of the foreign :udgment on the probate abroad 'lace where domiciled at death or incase of non;domiciliar%, where assets are found !o;e8tensive with the 9ualif%ing of the appointing court C powers ma% onl% be e8ercised within the territorial :urisdiction of the court concerned NOTE: these rules also appl% to principal, domiciliar%, or ancillar% administrators 7 receivers even in non; successive cases

*,T6*,)*! KA"*0*TL +- .*"") !A'A!*TL T+ )2!!==0 6=K+!AT*+, +- .*"") 1 *f done in the 6' *f done +2T)*0= the 6' a. (% a ,+,;0+/*!*"*A6L

b. (% a 0+/*!*"*A6L of the 6' '6+(AT= +- .*"") /A0= A(6+A0 1 *f not %et probated abroad

*f alread% probated abroad

=M=!2T+6) A,0 A0/*,*)T6AT+6) 1 .here appointed 'owers

RULES ON OBLIGATION AND CONTRACTS -A!T2A" )*T2AT*+, -+6/A" +6 =MT6*,)*! KA"*0*TL Exceptions a. Alienation 7 encumbrance of propert% b. !onsular contracts !A'A!*TL +- !+,T6A!T*,4 'A6T*=)

'+*,T +- !+,TA!T Lex loci cele#rationis (Article 1F N1O$ "e8 situs (Article 16 H1I$ "aw of the 6' (if made in 6' consulates$ ,ational law (Article 1>$ without pre:udice to the case of *nsular 4overnment v -ran< 13 ' 36, where the )! adhered to the theor% of lex loci cele#rationis Lex sit&s (Article 16 N1O$ 'roper law of the contract C lex contract&s (in the broad sense$, meaning the lex $ol&ntatis or lex loci intentionis

Exception Alienation 7 encumbrance of propert% *,T6*,)*! KA"*0*TL (*,!"20*,4 *,T=6'6=TAT*+, +- TJ= *,)T62/=,T), A,0 A/T. +- 0A/A4=) -+6 (6=A!J$

+TJ=6 TJ=+6*=) A6=: a. Lex loci cele#rationis (defect: this ma<es possible the evasion of the national law$ b. Lex nationalii (defect: this ma% impede commercial transactions$ c. Lex loci sol&tionis (law of the place of performance$ (defect: there ma% be several places of performance d. 'rof /inorPs solution: i. 'erfection C lex loci cele#rationis ii. !ause or consideration C lex loci considerations iii. 'erformance C lex loci sol&tionis (defect: this theor% combines the defect of the others$ RULES ON TORTS -A!T2A" )*T2AT*+, "iabilit% 7 damages for torts in general NOTE: The loc&s delicti (place of commission of torts$ is faced b% the problem of characterization. *n civil law countries, the loc&s delicti is generall% where the act began1 in common law countries, it is where the act first became effective '+*,T +- !+,TA!T Lex loci delicti (law of the place where the delict was committed$ NOTE: liabilit% for foreign torts ma% be enforced in the 6' if: a. The tort is not penal in character b. *f the enforcement of the tortious liabilit% wonPt contravene our public polic% c. *f our :udicial machiner% is ade9uate for such enforcement '+*,T +- !+,TA!T Generall* where committed +loc&s re!it act&m,

RULES ON CRIMES -A!T2A" )*T2AT*+, =))=,T*A" ="=/=,T) +- A !6*/= A,0

'=,A"T*=)

TJ=+6*=) A) T+ .JAT !+26T JA) J26*)0*!T*+,: a. Territorialit% theor% C where the crime was committed b. ,ationalit% theor% C countr% which the criminal is citizen or a sub:ect c. 6eal theor% C an% state whose penal code has been violated has :urisdiction, where the crime was committed inside or outside its territor% d. 'rotective theor% C an% state whose national interests ma% be :eopardized has :urisdiction so that it ma% protect itself e. !osmopolitan or universalit% theor% C state where the criminal is found or which has his custod% has :urisdiction f. 'assive personalit% theor% C the state of which the victim is a citizen or sub:ect has :urisdiction NOTE: *n the 6', we follow the territorialit% theor% in general1 e8ception: Article , 6'!, stresses the protective theor% TJ= LOC(' DELICTI +- !=6TA*, !6*/=) 1 -rustrated an consummated, homicide, .here the victim was in:ured (not where murder, infanticide 7 parricide the aggressor wielded his weapon$ Attempted homicide, etc. .here the intended victim was (not where the aggressor was situated$ C so long as the weapon or the bullet either touched him or fell inside the territor% where he was 3 (igam% .here the illegal marriage was performed 5 Theft 7 robber% .here the propert% was unlawfull% ta<en from the victim (not the place to which the criminal went after the commission of the crime$ > =stafa or swindling thru false .here the ob:ect of the crime was representation received (not where the false representations were made$ 6 !onspirac% to commit treason, rebellion, .here the conspirac% was formed (not or sedition where the overt act of treason, rebellion NOTE: +ther conspiracies are ,+T or sedition was committed$ penalized b% our laws F "ibel .here published or circulated A !ontinuing crime An% place where the offense begins, e8ists or continues B !omple8 crime An% place where an% of the essential elements of the crime too< place R' es #* 0'&i)ic! Pe&s#*s -A!T2A" )*T2AT*+, !+6'+6AT*+,) 'owers and liabilities '+*,T +- !+,TA!T 4eneral rule: the law of the place of incorporation E%CEPTION': a. -or constitutional purposes C even of the corporation was incorporated in the 6', it is nor deemed a -ilipino corporation 7 therefore canPt ac9uire land, e8ploit our natural resources, F operate public utilities unless 6GQ of capital if -ilipino owned b. -or wartime purposes C we pierce the corporation veil 7 go to the nationalit% of the controlling stoc<holders to determine if the corporation is an enem% (!+,T6+"

-ormation of the corporation (re9uisites$1 <ind of stoc<s, transfer of stoc<s to bind the corporation, issuance, amount 7 legalit% 7 dividends, powers 7 duties of members, stoc<holders and officers Kalidit% of corporate acts 7 contracts (including &ltra $ires acts$ 6ight to sue 7 amenabilit% to court processes 7 suits against it /anner 7 effect of dissolution

T=)T$ "aw of the place of incorporation

"aw of the place of incorporation 7 law of the place of performance (the act or contract must be authorized b% (+TJ laws$ Lex fori

"aw of the place of incorporation provided that the public polic% of the forum is not militated against 0omicile *f not fi8ed b% the law creating or recognizing the corporation or b% an% other provision C the domicile is where it is legal representation is established or where it e8ercises its principal functions (Article. 1>$ 6eceivers (appointment 7 powers$ 'rincipal receiver is appointed b% the courts of the state of incorporation1 ancillar% receivers, b% the courts of an% state where the corporation has assets (authorit% is !+;=MT=,)*K=$ w& the authorit% of the appointing court NOTE: Theories on the personal and&or governing law of corporations: a. "aw of the place of incorporation (this is generall% the 6' rule$ b. "aw of the place or center of management (center for administration or siege social$ (center office principle$ c. "aw of the place of e8ploitation (exploitation centre or sie!e d- exploitation$ 'A6T,=6)J*') The e8istence or non;e8istence of legal The personal law of the partnership, i.e., personalit% of the firm1 the capacit% to the law of the place where it was contract1 liabilit% of the firm 7 the created (Article 1> of the !ode of partners to 3rd persons !ommerce$ ()ub:ect to the e8ceptions given above as in the case of corps.$ !reation of branches in the 6'1 validit% 6' law (law of the place where 7 effect of the branchesP commercial branches were created$ (Article 1>, transaction1 7 the :urisdiction of the !ode of !ommerce$ court 0issolution, winding up, 7 termination of 6' law (Article 1>, !ode of !ommerce$ branches in the 6' 0omicile *f not fi8ed b% the law creating or recognizing the partnership or b% an% other provision C the domicile is where it is legal representation is established or where it e8ercises its principal functions (Article. 1>$ 6eceivers 6' law insofar as the assets in the 6' are concerned can be e8ercised as such onl% in the 6' -+2,0AT*+,) (!+/(*,AT*+, +- !A'*TA" 'ersonal law of the foundation (place of *,0='=,0=,T +- *,0*K*02A"), 2)2A""L ,+T principal center of administration$ -+6 '6+-*T$