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Conflicts of Law - Justice Sempio-Diy Book
Conflicts of Law - Justice Sempio-Diy Book
Chapter 1
In General
Conflict of Laws
That part of the 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
they should apply a foreign law or foreign laws
Chapter 2
Jurisdiction and choice of law
How one deals with a problem in Conflict of Laws
1.
1.
Direct sources
Treaties
International conventions
Constitutions
Codifications and statutes
Judicial decisions
International customs
2.
Indirect sources
Natural moral law
2.
Conferred by law
Page 1 of 22
Conflict of Laws
Jurisdiction in personam
Binds only the parties and
their successors in interest
3.
Service by publication
(1) Action in rem
(2) Action quasi in rem
(3) Action involves the personal status of
plaintiff
Extraterritorial service of summons
(1) When the defendant does not reside and
is not found in the Philippines, and the
action affects the personal status of the
plaintiff
(2) When the defendant does not reside and
is not found in the Philippines, and the
action relates to or the subject of which is,
property within the Philippines (real or
personal), in which the defendant has a
claim, a lien or interest, actual or
contingent
(3) When the defendant is a non-resident but
the subject of the action is property
located in the Philippines in which the
relief demanded consists in excluding the
defendant from any interest therein
(4) When the property of a non-resident
defendant has been attached in the
Philippines
While a writ of attachment may
be issued by the court, said
writ cannot be implemented
until the court has acquired
jurisdiction over the nonresident defendant
4.
To curb the evils of forum shopping the nonresident plaintiff might have filed the case in the
forum merely to secure procedural advantages or
to annoy or harass the defendant
5.
6.
7.
8.
Page 2 of 22
Conflict of Laws
2.
4.
5.
6.
7.
8.
Chapter 3
Theories that justify the application of the foreign law
Theories that justify the application of the foreign law
instead of domestic or internal law
1. Theory of comity
2. Vested right theory
3. Theory of local law
4. Theory of harmony of laws
5. Theory of justice
Theory of comity
According to this theory, no foreign law would be allowed to
operate in another state except by the comity of nations
Comity
The recognition which one state allows within its
territory, to the legislative, executive, or judicial acts of
another nation
Two principles upon which the theory of comity
rests
1. The comity based on reciprocity
2. The comity based on the persuasiveness of a
foreign judgment
Our Civil Procedure still follows the
principle of reciprocity because in
Sec. 48, Rule 39, a foreign final
Lesley Claudio (A 2012)
2.
Conflict of Laws
1.
2.
Chapter 5
Characterization of conflict rules
Characterization
Otherwise known as classification or qualification is the
process of assigning a certain set of facts or factual
situation to its proper or correct legal category. By
characterizing the legal problem, the court of the parties
involved reach the proper solution whether to apply the
local law or the proper foreign law
Most writers hold that on the grounds of practical
necessity and convenience, it is the forum or the
lex fori that should determine the problems
characterization unless the result would be a clear
injustice
Characteristics of status
1. It is conferred principally by the State, not by the
individual
2. It is a matter of public interest or social interest
3. Being a concept of social order, it cannot easily be
terminated at the mere will or desire of the parties
concerned
4. It is generally supposed to have a universal
character
Chapter 6
Persona law Theories in determining ones personal
law
Personal law.
That which attaches to him wherever he may go. The law
that generally governs his status, capacity, condition, family
relations, and the consequences of his actuations. It may
be:
1. National law
2. Law of his domicile
3. Law of the situs
Status vs. capacity
Status
Place of an individual in
society and consists of
personal qualities and
relationships more or less
permanent, with which the
state and the community are
concerned
Capacity
Only part of ones status and
may be defined as the sum
total of his rights and
obligations
1.
Juridical capacity
Passive capacity
The fitness to be the subject of legal
relations
2.
Capacity to act
Active capacity
The power to do acts with legal effects
Citizenship
A citizen is one who owes
allegiance to and is entitled
to the protection of the
State
nationality and citizenship
Chapter 7
The Nationality Theory
Different kinds of citizenship in the Philippines
1. Natural born citizens
Those who are citizens from birth without
having to perform any act to acquire or
perfect their Philippine citizenship
Native-born Filipinos
Those born in the Philippines. Natural-born
citizens may not be native-born if they were
born abroad
2.
Citizens by naturalization
Those who were formerly aliens but by
judicial, legislative, or administrative
process, have become Filipino citizens
Page 4 of 22
Conflict of Laws
Jus soli v. jus sanguinis
Jus soli
A person is a citizen of the
country where he was born
or of the country of his birth
Jus sanguinis
It is citizenship by blood
This is the rule that we
follow in the Philippines
Page 5 of 22
Conflict of Laws
Qualifications
Disqualifications
Naturalization
Judicial naturalization under Com. Act. 475,
as amended
1. The petitioner must not e less than 21
years of age on the date of the hearing of the
petition
2. He must have, as a rule, resided in the
Philippines for a continuous period of not less
than 10 years
3. He must be of good moral character, and
believe in the principles underlying the
Philippine Constitution, and must have
conducted himself in a proper and
irreproachable manner during the entire
period of his residence in the Philippines in
his relation with the constituted government
as well as with the community in which he is
living
4. He must own real estate in the
Philippines worth not less than 5,000,
Philippine currency, or must have some
lucrative trade, profession, or occupation
5. He must be able to speak and write
English or Spanish and any one of the
principal languages and
6. He must have enrolled his minor children
of school in any of the public or private
schools recognized by the Bureau of Private
Schools where Philippine history,
government, and civics are taught or
prescribed as part of the school curriculum
during the entire period of the residence
required of him, prior to the hearing of his
petition for naturalization as citizen
Page 6 of 22
Conflict of Laws
Loss of citizenship
Under Com. Act 63, as amended, a Filipino citizen may lose
his citizenship in any of the following ways:
1. By naturalization in a foreign country
2. By express renunciation of citizenship
3. By subscribing an oath of allegiance to support the
constitution or laws of a foreign country upon
attaining twenty-one years of age or more
4. By accepting commission in the military, naval, or
air service of a foreign country
5. By cancellation of the certificate of naturalization
6. By having been declared by competent authority, a
deserter of the Philippine armed forces in time of
war, unless subsequently a plenary pardon or
amnesty has been granted; and
7. In case of a woman, upon her marriage to a
foreigner, if, by virtue of the laws in force in her
husbands country, she acquires his nationality
Under the 1987 Constitution, however,
the woman retains her Philippine
citizenship unless by her act or omission
she is deemed under the law to have
renounced her Philippine citizenship
Philippine citizenship, how reacquired
Under C.A. 63, as amended, Philippine citizenship may be
reacquired as follows:
1. By naturalization, provided the applicant possesses
none of the disqualifications
2. By repatriation of deserters of the Army, Navy, or
Air Corps, Provided, that a woman who lost her
citizenship by reason of her marriage to an alien
may be repatriated in accordance with the
provisions of this Act after the termination of the
marital status
3. By direct act of Congress
RA 9225 Citizenship Retention and Reacquisition
Act of 2003
Under this law, natural born Filipino citizens who had been
naturalized in foreign countries are deemed to have
reacquired Philippine citizenship by taking an oath of
allegiance to the Philippine Constitution and laws. Those
who become naturalized in foreign countries after the
effectivity of the Act retain their Philippine citizenship upon
taking the same oath
Chapter 8
Domiciliary Theory
Domiciliary theory
It is the theory whereby the status, condition, family rights
and obligations, and capacity of a person are governed by
the law of his domicile or the lex domicilii
Domicile
It is the place where a person has his true, fixed,
permanent home, and principal establishment, and to
which, whenever he is absent, he has the intention of
returning.
Domicile v. residence
Domicile
Residence
Denotes a fixed, permanent
Used to indicate a place of
residence to which, when
abode, whether permanent
absent, one has the
or temporary
intention of returning
Residence is not domicile, but domicile is residence coupled
with intention to remain for an unlimited time
Domicile v. citizenship
Domicile
Citizenship
Speaks of ones permanent
Indicates ties of allegiance
place of abode
and loyalty
A person may be a citizen or national of one sate and a
domiciliary of another
Note: The forum applies its own concept of domicile in
determining the domicile of a litigant before its courts (law
of the forum/lex fori, NOT national law, is the law that
determines ones domicile)
Different kinds of domicile
1.
2.
3.
6.
Conflict of Laws
If a foundling
Public officials or
employees abroad
(diplomats, etc)
Chapter 9
The situs or eclectic theory
1.
2.
3.
4.
1.
2.
1.
2.
Renvoi
3.
3.
Conflict of Laws
4.
Double renvoi
This occurs when the local court, in adopting the foreign
court theory, discovers that the foreign court accepts the
renvoi. But since the foreign law remits the case to
Philippine law, being the law of the deceaseds domicile, the
foreign court may discover that Philippine law does not
accept the remission (as it applies the national law of the
deceased) so the foreign court, sitting as a Philippine court,
would still apply its own internal law. This is then what our
court will apply.
Theory of transmission v. renvoi
Theory of transmission
Renvoi
Transmission is the process
Renvoi means to refer a
of applying the law of a
matter for consideration or
foreign state thru the law of
judgment
a second foreign state
Transmission involves three
Renvoi involves two laws
laws
Chapter 11
Conflict rules on status and capacity
Absence, defined
A special legal status pertaining to a person who has
disappeared from his domicile, his whereabouts being
unknown, without leaving an agent to administer his
property or even if he had left an agent, the power
conferred by the absentee on the agent has expired
One status of being absent is determined in
accordance with his personal law
Our own courts also have jurisdiction to declare an
alien domiciliary in the Philippines as absent
Judicial declaration of absence under Philippine law
After the lapse of two years without any news about the
absentee or since the receipt of the last news, and five
years if the absentee has left an administrator of his
property, his absence may be declared
Instances when an absentee may be presumed dead
and for what purposes
1.
2.
3.
1.
2.
Page 9 of 22
Conflict of Laws
Change of names and surnames
A change of name is a special proceeding to establish the
status of a person involving his relation with others. Aliens
can ask for change of name in the Philippines, provided they
are domiciled here.
But an alien whose citizenship is either
controverted or doubtful cannot ask for a change of
name
Legislative jurisdiction vs. judicial jurisdiction over
ones status
Legislative jurisdiction
Judicial jurisdiction
Legislative jurisdiction over
Judicial jurisdiction over
ones status is the power of
ones status is the power of
his personal law to govern
the courts to decide
his status wherever he goes
questions or controversies
concerning ones status
Note: Thus, our courts can decide cases involving the
status and capacity of foreigners brought before them, but
in doing so, our courts will apply the personal law of the
foreigner, whether it be his national law or the law of his
domicile, depending on what theory the country of his
citizenship follows.
1.
2.
1.
2.
Essential requisites
(1) Legal capacity of the contracting parties
who must be male and female
(2) Consent freely given in the presence of a
solemnizing officer
Formal requisites
(1) Authority of the solemnizing officer
(2) A valid marriage license
(3) A marriage ceremony takes place with the
appearance of the contracting parties
before the solemnizing officer and their
personal declaration that they take each
other as husband and wife in the presence
of not less than two witnesses of legal age
3.
4.
Mixed Marriages
Marriage between a
Filipino and foreigner
ABROAD
Conflict of Laws
Marriage between a
Filipino and a foreigner in
the PHILIPPINES
1.
2.
1.
2.
3.
EXCEPTIONS
1. If the national law of the husband violates public
policy of the forum
2. The national law of the wife happens to be the law
of the forum
Conflicts rules on the property relations of husband
and wife
GR: Property relations of the spouses are governed by
Philippine law, regardless of the place of the celebration of
marriage and their residence (nationality theory)
If one spouse is a Filipino (wife or husband) and
the other is an alien, Philippine law would still
govern
EX:
1.
2.
Conflict of Laws
prescription
The same property regime
as in a valid marriage is
established between the
spouses
The children are legitimate if
conceived before the decree
of annulment
4.
Divorce
Absolute divorce, dissolves
the marriage and the parties
can marry again
Conflict of Laws
Page 13 of 22
Conflict of Laws
Philippine internal law on legitimation of children
(Articles 177-182, FC)
Requisites for legitimated children
1. The child was conceived AND born outside lawful
wedlock
2. The parents at the time of the childs conception,
were not disqualified by any impediment to marry
each other
Note: Legitimation creates a permanent (immutable) status
of the child
Adoption
An act, which establishes a relationship of paternity and
filiation and in so doing, endows the child with legitimate
status
Law which determines whether the relationship of
adoption has been created or not
1. The childs personal law
2. If the child does not reside in the country of his
citizenship the personal law of the adopter will
govern, or the personal law of the adopter and that
of the child will be applied concurrently
Law which determines the legal effects of adoption
The legal effects of adoption are determined by the same
law that created the relationship of adoption
of wills
Intrinsic validity
Substance of wills
Concerns itself with:
1. Order of succession
Page 14 of 22
Conflict of Laws
wills which include:
1. Age and
testamentary
capacity of the
testator
2. Form of the will
(notarial or
holographic) etc
Amount of
successional rights,
and other matters
of substance
Conflict of Laws
1.
2.
Appointed by
testator in
his will
3.
4.
5.
Administrator
with a will
annexed
Appointed by
the court if
there is a will
but no executed
is designated
therein
Appointed by
the court if
there is no will
6.
Administrator
Ancillary
administration
Administration in other
countries where the
deceased also left
properties
Chapter 15
PROPERTY
Conflict rules on real property and personal property
GR: lex situs/ lex re sitae law of the place where the
property is located
Page 16 of 22
Conflict of Laws
transit
Voluntary assignment
or transfer of credit
Other theories:
1. The law of the
place where the
assignment is
executed
2. The law of the
place where
performance or
payment is
normally
expected
3. The national law
of the parties
Domicile of creditor
Goodwill of business
-Art. 521, NCC: property
and may be transferred
together with the right to
use the name under which
the business is conducted
Goodwill
-The patronage of any
established trade or
business
Patents, copyrights, trademarks, trade names,
and service marks
Patents, copyrights,
GR: in the absence of a
trade marks, trade
treaty, protected only by
names
the state that granted or
recognized them
Art. 520, NCC: a trade
mark or a trade name duly
registered in the proper
government bureau or
office is owned by and
pertains to the person,
corporation, or firm
registering the same,
subject to the provisions
of special laws
Intellectual property
Code: Any foreign
corporation being a
national or domiciliary o a
country which is a party to
a convention, treaty, or
agreement related to
intellectual property rights
to which the Philippines is
also a party or which
extends reciprocal rights
to our nationals by law,
shall be entitled to the
benefits to the extent
necessary to give effect to
any provision of such
convention.
- Foreign corporation even
if not engaged in business
in the Philippines may
nevertheless bring a civil
or administrative action,
for opposition,
cancellation, infringement,
or unfair competition.
Chapter 16
CONTRACTS
Contract, defined
Art. 1305, NCC: Meeting of minds between two persons
whereby one binds himself, with respect to the other, to
give something or to render some service.
The specific subject of contract in Conflict of Laws
is limited to purely civil or commercial transactions.
Page 17 of 22
Conflict of Laws
Conflicts rules in determining extrinsic validity of
contracts
GR: the extrinsic validity of contracts is governed by the lex
loci celebrationis/ lex loci contractus
Variations to the rule of lex loci intentions in
determining extrinsic validity of contracts
1. A contract entered into by parties in two different
countries by cablegram, telex, or fax
Art. 1319 par. 2: Acceptance made by
letter or telegram does not bind the
offeror except from the time it came to his
knowledge. The contract in such a case is
presumed to have been entered in the
place where the offer was made
American law: contract is deemed
entered into in the place where the
acceptance of the offer is posted or mailed
2. Place of execution was merely casual or accidental
The law which has the most significant
relationship to the transaction should be
applied
3. (EX) When the lex loci contractus/lex loci
celebrationis contravenes an established and
important policy of the forum, or to apply it would
work gross injustice to the people of the forum, or
if the transaction is contra bonos mores
Conflict rules in determining capacity of parties to a
contract
GR: Capacity to enter into contracts is generally governed
by the personal law of the parties
Extrinsic
validity
Barter, sale,
donation
Lease of
property:
creates real
rights
Lease of
property:
does not
create real
rights
Pledge,
chattel
mortgage,
real estate
mortgage,
antichresis
Contract of
loan: mutuum
Lex situs
Capacity
of
parties
Lex situs
Lex situs
Lex situs
Lex situs
Lex loci
celebrationis
Personal
law of
the
parties
Lex
voluntatis
or lex loci
intentionis
Lex situs
Lex situs
Lex situs
Lex loci
celebrationis
Contract of
loan:
commodatum
Lease of
service,
agency,
guaranty,
suretyship
Lex situs
Personal
law of
the
parties
Lex stius
Lex loci
voluntatis
or lex loci
intentionis
Lex situs
Personal
law of
parties
Lex loci
volntatis
or lex loci
intentionis
Lex loci
celebrationis
Intrinsic
validity
Lex situs
Note: Agency
Lesley Claudio (A 2012)
Page 18 of 22
Conflict of Laws
to alienate or
encumber real
property is
governed by lex
situs
Lex loci
celebrationis
Personal
Lex loci
law of
voluntatis
parties
Liability for loss, destruction,
deterioration of goods in transit: law
of destination of goods (Art. 1753,
NCC)
Contract of
transportation
or carriage
(render
services)
3.
Page 19 of 22
Conflict of Laws
4.
Nationality or personal
theory
Protective theory
Crime
Both are wrongs
Violates private rights
Committed against state
Instituted by injured person
Prosecuted in the name of
against wrongdoer in civil
the State against the
case, the purpose of which
offender in criminal actions
is indemnification for
for the purpose which are
damages suffered
protection and vindication of
interests of the public as a
whole, punishment of the
offender, the reformation of
offender, or to deter others
from committing the same
act
Transitory in character
Local in character and can
tortfeasor can be made
be prosecuted only in the
liable for his wrongful act in
place or states where the
any jurisdiction where he
crimes are committed
may be found
Note: The determination of whether a wrongful act is a tort
or crime depends on the characterization of the act in the
state where said act is committed
Different theories that determine whether a state or a
legal system has jurisdiction to take cognizance of
criminal cases
Under this theory, the state
where the crime was
Territorial theory
committed has jurisdiction
to try the case, and its penal
code and the penalties
described therein will apply
Subjective territorial
principle
The state where the crime
was begun may prosecute
the same, even if it was
Lesley Claudio (A 2012)
Cosmopolitan or
universality theory
Passive personality or
passive nationality theory
Objective territorial
principle
The state can prosecute
crimes began abroad but
completed within its territory
The country of which the
criminal is a citizen or
subject has jurisdiction to
try him for crimes allegedly
committed by him, whether
inside or outside its
territory, provided it is a
crime under said countrys
penal law
Any state whose national
interests may be jeopardized
has jurisdiction over criminal
offenses, even if it is
committed outside its
territory and even if
committed by an alien
Any state whose penal code
has been transgressed upon
has jurisdiction, whether the
crime was committed inside
or outside its own territory
Any state where the criminal
is found or which has
obtained custody over him
can try him, unless
extradition applies
The state of which the victim
is a victim or subject has
jurisdiction to prosecute the
offense
Page 20 of 22
Conflict of Laws
The territory where the
crime was committed will
have jurisdiction EXCEPT:
1. In matters relating
to internal order
and disciple of the
vessel and
2. Those which affect
solely the ship and
its occupants such
as minor or petty
criminal offenses
committed
Chapter 19
BUSINESS ASSOCIATIONS
Corporation, defined
Sec. 2 of Corporation Code: An artificial being created by
operation of law, having the right of succession and the
powers, attributes, and properties expressly authorized by
law or incident to its existence
Foreign corporation, defined
Sec. 123 of Corporation Code: One formed, organized, or
existing under any laws other than those of the Philippines
and whose laws allow Filipino citizens and corporations to do
business in its own country or state
2.
Conflict of Laws
Chapter 20
RECOGNITION AND ENFORCEMENT OF FOREIGN
JUDGMENTS
Enforcement v. recognition
Enforcement of foreign
judgment
Means that the plaintiff or
petitioner wants the court to
positively carry out and
make effective the foreign
judgment
Implies an act of
sovereignty
Requires separate action or
proceeding brought precisely
to make foreign judgment
effective
Recognition of foreign
judgment
Means that eh defendant or
respondent is presenting the
foreign judgment on the
basis of res judicata
Page 22 of 22