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, 2d, Conflict of Laws, §1). 2. 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 they should apply a foreign law/s (Paras).

DISTINGUISHED FROM PUBLIC INTERNATIONAL LAW BASIS 1
Nature Municipal in character Dealt with by private individuals; governs individuals in their private transactions which involve a foreign element International in character Sovereign states and other entities possessing international personality, e.g., UN; governs states in their relationships amongst themselves Generally affected by public interest; those in general are of interest only to sovereign states May be peaceful or forcible

CONFLICT OF LAW

LAW OF NATIONS

2

Persons involved

3

Transactions involved

Private transactions between private individuals

Peaceful: includes diplomatic negotiation, tender & exercise of good offices, mediation, inquiry & conciliation, arbitration, judicial settlement by ICJ, reference to regional agencies Forcible: includes severance of diplomatic relations, retorsions, reprisals, embargo, boycott, non-intercourse, pacific blockades, collective 4
Remedies and Sanctions Resort to municipal tribunals

measures under the UN Charter, and war.

SOURCES: Direct:

in conflicts. the law of one’s domicile applied in the choice of law questions Lex Fori – law of the forum. Codifications 1. 3. Constitutions 2.national law Renvoi Doctrine – doctrine whereby a jural matter is presented which the conflict of laws rules of the forum refer to a foreign law which in turn. that is. which includes general and particular customs and particular local laws Lex Patriae . 2. Natural moral law 1. country or jurisdiction of whose judicial system of the court where the suit is brought or remedy is sought is an integral part.1. refers the matter back to the law of the forum or a .law of the place where property is situated. 4. that system of laws which is adopted by all commercial nations and constitute as part of the law of the land. part of common law Lex Non Scripta – the unwritten common law. the positive law of the state. the title to realty or question of real estate law can be affected only by the law of the place where it is situated Lex Situs . the general rule is that lands and other immovables are governed by the law of the state where they 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 solution. Special Laws Treaties and Conventions Judicial Decisions International Customs Indirect: 1. commercial law. Substantive rights are determined by the law where the action arose (lex loci) while the procedural rights are governed by 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 may or may 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 subject matter is situated. the law of the place where payment or performance of a contract is to be made Lex Loci Delicti Commissi – law of the place where the crime took place Lex Mereatoria – law merchant. Work of writers TERMS: Lex Domicilii – law of the domicile.

APPLY INTERNAL LAW – forum law should be applied whenever there is good reason to do so. Long Arm Statutes – Statutes allowing the courts to exercise jurisdiction when there are minimum contacts between the non-resident defendant and the forum. condition. WAYS OF DEALING WITH A CONFLICTS PROBLEM: 1. A specific law of the forum decrees that internal law should apply 1. the status. rights. there is a good reason when any one of the following factors is present: Examples:  Article. Assume jurisdiction and apply either the law of the forum or of another state 1. 16 of the Civil Code – real and personal property subject to the law of the country where they are situated and testamentary succession governed by lex nationalii  Article 829 of the Civil Code – makes revocation done outside Philippines valid according to law of the place where will was made or lex domicilii  Article 819 of the Civil Code – prohibits Filipinos from making joint wills even if valid in foreign country 1. & capacity of a person should be governed by the law of his domicile. this is said to be “remission” while reference to a third state is called “transmission.by virtue of which the status and capacity of an individual are generally governed by the law of his nationality. courts do not take judicial notice of foreign laws. Foreign laws must be pleaded and proved Effect of failure to plead and prove foreign law (3 alternatives) of the forum court: (a) Dismiss the case for inability to establish cause of action (b) Assume that the foreign law of the same as the law of the forum (c) Apply the law of the forum 1. obligations. When reference is made back to the law of the forum. This is principally adopted in the RP Domiciliary Theory – in general. real or personal (lex situs) .third state. or on the ground of forum non-conveniens DOCTRINE OF FORUM NON CONVENIENS – the forum is inconvenient. Dismiss the case for lack of jurisdiction. The case falls under any of the exceptions to the application of foreign law Exceptions to application of foreign law: (a) The foreign law is contrary to the public policy of the forum (b) The foreign law is procedural in nature (c) The case involves issues related to property. The proper foreign law was not properly pleaded and proved NOTICE AND PROOF OF FOREIGN LAW   As a general rule. i. the ends of justice would be best served by trial in another forum. ii.” Nationality Theory . the controversy may be more suitably tried elsewhere 1.

an act done in another state may give rise to the existence of a right if the laws of that state crated such right. APPLY FOREIGN LAW – when properly pleaded and proved THEORIES WHY FOREIGN LAW SHOULD BE GIVEN EFFECT 1. Theory of Justice – the purpose of all laws. that is. but because our laws. irrespective of the forum. Theory of Comity – foreign law is applied because of its convenience & because we want to giveprotection to our citizens. When the goal is realized. CC) 2 Ways & effects of emancipation Same 3 Age of majority Same . residents. require us to do so. 3. we must do so Rules on Status in General Factual Situation 1 Point of Contact Beginning of personality of natural person National law of the child (Article 15.adherents of this school of thought believe that we apply foreign law not because it is foreign. including Conflict of Laws. hence. the solution should be approximately the same.(d) The issue involved in the enforcement of foreign claim is fiscal or administrative (e) The foreign law or judgment is contrary to good morals (contra bonos mores) (f) The foreign law is penal in character (g) When application of the foreign law may work undeniable injustice to the citizens of the forum (h) When application of the foreign law might endanger the vital interest of the state 2. by applying similar rules. identical or similar solutions anywhere & everywhere. Theory of Harmony of Laws – theorists here insist that in many cases we have to apply the foreign laws so that wherever a case is decided. is the dispensing of justice. if this can be attained in may cases applying the proper foreign law. thus. it is as if the foreign law has become part & parcel of our local law 4. there will be “harmony of laws” 5. Theory of Vested Rights – we seek to enforce not foreign law itself but the rights that have been vested under such foreign law. Theory of Local Law. & transients in our land 2.

CC. 4. 390. and ascendants-descendants) Apply 1 (b) to uphold validity of marriage National law (Article 21. 35 (1. Rule 131 §5 [jj]. 5 & 6). FC) PROVIDED the marriage is not highly immoral or universally considered incestuous) National law of Filipino (otherwise public policy may be militated against) Lex loci celebrationis (with prejudice to the foregoing rules) Between Filipinos Celebrated Abroad Between Foreigners Mixed Celebrated in RP Between Foreigners Mixed Marriage by proxy (NOTE: a marriage by proxy is considered celebrated where the proxy appears Rules on Marriage as a Status FACTUAL SITUATION POINT OF CONTACT . 37 & 38 of the Family Code (bigamous & incestuous marriages) & consular marriages Lex loci celebrationis EXCEPT if the marriage is: 1. 391. 36.4 Use of names and surnames Same 5 Use of titles of nobility Same 6 Absence Same Lex fori (Article 43. Highly immoral (like bigamous/ polygamous marriages) 2. Rules of Court) 7 Rules on Marriage as a Contract Presumptive death & survivorship FACTUAL SITUATION POINT OF CONTACT Lex loci celebrationis is without prejudice to the exceptions under Articles 25. Universally considered incestuous (between brother-sister.

although by itself. There is a possibility that the principal contract is valid but the mortgage is void. the mortgage could have been valid. If both will have a new nationality – the new one 2. 2. Tangible personal property (choses in possession) . CC) National law of decedent (Article. CC) National law of decedent (Article 16 par. 1039) The law intended will be the proper law of the contract (lex loci voluntantis orlex loci intentionis) The principal contract (usually loan) is governed by the proper law oft the contract – (lex loci voluntatis or lex loci intentionis) Exceptions Contracts where the real property is given as security NOTE: the mortgage itself is governed by lex rei sitae. the mortgage will also be void (for lack of proper cause or consideration). If the principal contract is void. If only one will change – the last common nationality 3. This is the DOCTRINE OF IMMUTABILITY IN THE MATRIMONIAL PROPERTY REGIME) 1 Personal rights & obligations between husband & wife 2 Property relations bet husband & wife Rules on Property FACTUAL SITUATION Real property Successional rights Capacity to succeed Contracts involving real property which do not deal with the title thereto POINT OF CONTACT Lex rei sitae (Article 16. If no common nationality – nationality of husband at the time of wedding) National law of husband without prejudice to what the CC provides concerning REAL property located in the RP (Article 80) (NOTE: Change of nationality has NO EFFECT.National of husband (Note: Effect of subsequent change of nationality: 1. or it may be the other way around.

the same must be changed to pledge of personal property) Exceptions: same as those for real property Means of Transportation Vessels Law of the flag (or in some cases. 16. destruction. place of registry) Law of the depot (storage place for supplies or resting place) 2 Other means Things in transitu (these things have a changing status because they move) Loss. Lex loci solutionis Lex loci voluntatis or lex loci intentionis(proper law of the contract) 3 Taxation of debts Domicile of creditor . Lex loci celebrationis 4. CC) Locus regit actum (where seized) – because said place is their temporarysitus Lex loci volutantis or lex loci intentionis– because here there is a contract 3 Disposition or alienage of the goods FACTUAL SITUATION INTangIBLE PERSONAL PROPERTY (CHOSES IN ACTION) POINT OF CONTACT 1 Recovery of debts or involuntary assignment of debts (garnishment) Where debtor may be effectively served with summons (usually the domicile) 2 Voluntary assignment of debts Other Theories: 1. deterioration Validity & effect of the seizure of the goods Law of the destination (Article. Domicile of the debtor or creditor 3. CC) EXCEPTION: same as those for real property EXCEPT that in the example concerning mortgage. National law of the debtor or creditor 2.1 In General Lex rei sitae (Article. 1753.

they are protected only by the state that granted them 13 Patents. delivery or negotiation of the instrument In general.4 Administration of debts Lex situs of assets of the debtor (for these assets can be held liable for the debts) The right embodied in the instrument (for example. in the case of a Swedish bill of exchange. copyrights. situs of the instrument at the time of transfer. Swedish law determines its negotiability) 5 Negotiability or non-negotiability of an instrument 6 Validity of transfer. delivery or negotiation 7 Effect on a corporation of the sale of corporate shares Law of the place incorporation Lex loci voluntatis or lex loci intentionis (proper law of the contract) – for this is really a contract. usually this is the place where the certificate is delivered) 8 Effect between the parties of the sale of corporate shares 9 Taxation on the dividends of corporate shares Law of the place of incorporation 10 Taxation on the income from the sale of corporate shares Law of the place where the sale was consummated 11 Franchises Law of the place that granted them 12 Goodwill of the business & taxation thereto Law of the place where the business is carried on In the absence of a treaty. Succession & Administration of Conflict Rules FACTUAL SITUATION Extrinsic Validity of Wills POINT OF CONTACT . trademarks. trade names NOTE: foreigners may sue for infringement of trademarks and trade names in the RP ONLY IF Filipinos are granted reciprocal concessions in the state of the foreigners Wills.

829) 1.1 Made by an alien abroad Lex nationalii OR lex domicilii OR RP law (Article 816. even if valid where made) (Article 819) Valid if valid according to lex domicilii orlex loci celebrationis (Article 819) Lex loci celebrationis therefore void even if apparently allowed by Article 817 because the prohibition on joint wills is a clear expression of public policy Lex nationalii of the deceased – regardless of the LOCATION & NATURE of the property (Article 16 (2)) Lex nationalii of the deceased – not of the heir (Article 1039) 2 Made by aliens abroad 3 Made by aliens in the RP Intrinsic Validity of Wills Capacity to Succeed Revocation of Wills 1 If done in the RP If done OUTSIDE the RP Lex loci actus (of the revocation) (Article. OR lex loci celebrationis(Article 17(1)) 2 Made by a Filipino abroad Lex nationalii OR lex loci celebrationis(Article 815) 3 Made by an alien in the RP Lex nationalii OR lex loci celebrationis(Article 817) FACTUAL SITUATION Extrinsic Validity of Joint Wills (made in the same instrument) POINT OF CONTACT 1 Made by Filipinos abroad Lex nationalii (void. By a NON-DOMICILIARY Lex loci celebrationis (of the making of the will. NOT revocation). By a DOMICILIARY of the RP . OR lex domicilii(Article 829) Lex domicilii (RP law) OR lex loci 2 1. CC).

Alienation & encumbrance of property 1..actus (of the revocation) (Article 17) Probate of Wills Made Abroad Lex fori of the RP applies as to the procedural aspects. must also be probated here. but instead of proving due execution. generally it is enough to ask for the enforcement here of the foreign judgment on the probate abroad 1 If not yet probated abroad 2 If already probated abroad Executors and Administrators 1 Where appointed Place where domiciled at death or incase of non-domiciliary. Consular contracts Lex situs (Article 16 [1]) Law of the RP (if made in RP consulates) National law (Article 15) without prejudice to the case of Insular Government v Frank 13 P 236. or ancillary administrators & receivers even in nonsuccessive cases Rules on Obligation and Contracts FACTUAL SITUATION Formal or Extrinsic Validity POINT OF CONTACT Lex loci celebrationis (Article 17 {1}) Exceptions 1. the will must be fully probated here & due execution must be shown Lex fori of the RP again applies as to the procedural aspects. domiciliary. where assets are found Co-extensive with the qualifying of the appointing court – powers may only be exercised within the territorial jurisdiction of the court concerned 2 Powers NOTE: these rules also apply to principal. i.e. where the SC adhered to the theory of lex loci celebrationis Capacity of Contracting Parties Exception .

Protective theory – any state whose national interests may be jeopardized has jurisdiction so that it may protect itself 5. Lex nationalii (defect: this may impede commercial transactions) 3. Passive personality theory – the state of which the victim is a citizen or subject has jurisdiction . If our judicial machinery is adequate for such enforcement POINT OF CONTACT Generally where committed (locus regit actum) Theories as to what court has jurisdiction: 1. in common law countries. Prof Minor’s solution: 5. meaning the lex voluntatis or lex loci intentionis Other Theories are: 1. and amt.Alienation & encumbrance of property Intrinsic validity (including interpretation of the instruments. In civil law countries. Lex loci solutionis (law of the place of performance) (defect: there may be several places of performance 4. The tort is not penal in character 2. the locus delicti is generally where the act began. Nationality theory – country which the criminal is citizen or a subject 3. Cosmopolitan or universality theory – state where the criminal is found or which has his custody has jurisdiction 6. it is where the act first became effective Rules on Crimes FACTUAL SITUATION Essential elements of a crime and penalties NOTE: liability for foreign torts may be enforced in the RP if: 1. Perfection – lex loci celebrationis 6. Lex loci celebrationis (defect: this makes possible the evasion of the national law) 2. Cause or consideration – lex loci considerations 7. If the enforcement of the tortious liability won’t contravene our public policy 3. Territoriality theory – where the crime was committed 2. Real theory – any state whose penal code has been violated has jurisdiction. where the crime was committed inside or outside its territory 4. of damages for breach) Lex situs (Article 16 {1}) Proper law of the contract – lex contractus(in the broad sense). Performance – lex loci solutionis (defect: this theory combines the defect of the others) Rules on Torts FACTUAL SITUATION POINT OF CONTACT Lex loci delicti (law of the place where the delict was committed) Liability & damages for torts in general NOTE: The locus delicti (place of commission of torts) is faced by the problem of characterization.

homicide. RPC. we follow the territoriality theory in general.NOTE: In the RP. exists or continues 9 Complex crime Any place where any of the essential elements of the crime took place Rules on Juridical Persons FACTUAL SITUATION Corporations Powers and liabilities General rule: the law of the place of incorporation POINT OF CONTACT . stresses the protective theory The locus delicti of certain crimes 1 Frustrated an consummated. infanticide & parricide Where the victim was injured (not where the aggressor wielded his weapon) Where the intended victim was (not where the aggressor was situated) – so long as the weapon or the bullet either touched him or fell inside the territory where he was 2 Attempted homicide. etc. murder. 3 Bigamy Where the illegal marriage was performed Where the property was unlawfully taken from the victim (not the place to which the criminal went after the commission of the crime) Where the object of the crime was received (not where the false representations were made) 4 Theft & robbery 5 Estafa or swindling thru false representation Conspiracy to commit treason. exception: Article 2. rebellion. or sedition 6 NOTE: Other conspiracies are NOT penalized by our laws Where the conspiracy was formed (not where the overt act of treason. rebellion or sedition was committed) 7 Libel Where published or circulated 8 Continuing crime Any place where the offense begins.

7 operate public utilities unless 60% of capital if Filipino owned 2. Law of the place of incorporation (this is generally the RP rule) 2. exploit our natural resources. issuance. ancillary receivers. kind of stocks. Law of the place or center of management (center for administration or siege social) . amount & legality & dividends. For wartime purposes – we pierce the corporation veil & go to the nationality of the controlling stockholders to determine if the corporation is an enemy (CONTROL TEST) Formation of the corporation (requisites). stockholders and officers Law of the place of incorporation Law of the place of incorporation & law of the place of performance (the act or contract must be authorized by BOTH laws) Lex fori Law of the place of incorporation provided that the public policy of the forum is not militated against If not fixed by the law creating or recognizing the corporation or by any other provision – the domicile is where it is legal representation is established or where it exercises its principal functions (Article. powers & duties of members. it is nor deemed a Filipino corporation & therefore can’t acquire land. For constitutional purposes – even of the corporation was incorporated in the RP. 15) Principal receiver is appointed by the courts of the state of incorporation. by the courts of any state where the corporation has assets (authority is CO-EXTENSIVE) w/ the authority of the appointing court Validity of corporate acts & contracts (including ultra vires acts) Right to sue & amenability to court processes & suits against it Manner & effect of dissolution Domicile Receivers (appointment & powers) NOTE: Theories on the personal and/or governing law of corporations: 1. transfer of stocks to bind the corporation.EXCEPTIONS: 1.

Code of Commerce) If not fixed by the law creating or recognizing the partnership or by any other provision – the domicile is where it is legal representation is established or where it exercises its principal functions (Article. the law of the place where it was created (Article 15 of the Code of Commerce) (Subject to the exceptions given above as in the case of corps. usually not for profit) . the capacity to contract. Code of Commerce) RP law (Article 15.(center office principle) 3. 15) RP law insofar as the assets in the RP are concerned can be exercised as such only in the RP Personal law of the foundation (place of principal center of administration) Domicile Receivers Foundations (combination of capital independent of individuals.. liability of the firm & the partners to 3rd persons Creation of branches in the RP. Law of the place of exploitation (exploitation centre or siege d’ exploitation) Partnerships The existence or non-existence of legal personality of the firm. & termination of branches in the RP The personal law of the partnership. & the jurisdiction of the court Dissolution. winding up. i. validity & effect of the branches’ commercial transaction.) RP law (law of the place where branches were created) (Article 15.e.

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