CONFLICT OF LAWS

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 (it is the court who will decide as to which law is
applicable)
2005 notes:Conflict of laws is thus fundamentally a problem of
choice of law between foreign law and local or municipal law by
the forum court with local or municipal law as the starting point
DISTINGUISHED FROM PUBLIC INTERNATIONAL LAW
!"#$# CONFLICT OF LAW LAW OF NATIONS
% &ature 'unicipal in character $nternational in
character
2 (ersons
involved
)ealt with by private
individuals* governs
individuals in their
private transactions
which involve a
foreign element
#overeign states and
other entities
possessing
international
personality, eg, +&*
governs states in their
relationships amongst
themselves
, Transacti
ons
involved
(rivate transactions
between private
individuals
-enerally affected by
public interest* those in
general are of interest
only to sovereign states
. /emedie
s and
#anction
s
/esort to municipal
tribunals
(!( %20 as amended)
'ay be peaceful or
forcible
(eaceful: includes
diplomatic negotiation,
tender 1 e2ercise of
good offices,
mediation, in3uiry 1
conciliation,
arbitration, 4udicial
settlement by $C5,
reference to regional
agencies
6orcible: includes
severance of
diplomatic relations,
retorsions, reprisals,
embargo, boycott, non7
intercourse, pacific
bloc8ades, collective
measures under the +&
Charter, and war
(4urisdiction is based
on consent, if no
consent then no
4urisdiction)
Foreign laws ma !a"e no e#$ra$erri$orial e%%e&$ in $!e
P!ili''ines e#&e'$ w!en $!ere !as (een &onsen$) e#'ress or
im'lie* ( $!e la$$er+
77 the law of the country where right was ac3uired or the liability
was incurred will govern as to the right of action
77while the law of the country where the action is filed will govern
as to all that pertain to the remedy
77e2cept where the country9s prohibitive laws or public policies
provide otherwise
77:laws; may consist of substantive foreign law,if properly
applicable and procedural law of the forum where the case is filed
2005 notes: (hilippines has few conflict of laws rules, li8e "rts
%5,%< and %= of the Civil Code, and "rt 2< of family Code "rticle
0 of the civil code so provides that no 4udge or court shall decline
to render 4udgment by reason of the silence ,obscurity or
insufficiency of the laws
W!ere &ase in"ol"es no %oreign elemen$ an* $!e lo&al laws
a''li&a(le on $!e ma$$er are &on%li&$ing )&o,r$s resol"e $!em
(-
%by reconciling the 2 or more laws if at all possible
2if cannot be reconciled, by considering one law as having been
impliedly repealed by the latter statute
$f reconciliation of the conflicting 2 laws impossible, court will not
consider the foreign law as null and void or unconstitutional, nor
will it consider the foreign law as having repealed by local law for
courts have no authority to do so
,by e2cepting one law from the operation of the other, and on the
basis thereof, decide the case
"s such, the forum court ((hilippines) decides the case on the basis
of its laws or if foreign law is applied ,it is only because the local
or municipal law so re3uires
A FOREIGN LAW MA. BE GI/EN TERRITORIAL EFFECT AND
APPLICATION SINCE-
%local law directs that it be applied in a given case
2parties have stipulated that a specific foreign law be applied to
govern in case of dispute arising from their contract
,treaty or convention to which the country has adhered re3uires
that a foreign law be applied
.rules of conflict of laws point to the application of a foreign law
2005 notes: fact that resolution of a case re3uires the application of
foreign law does not automatically authori>e the courts to apply
foreign law
E#&e'$ions $o a''li&a$ion o% %oreign law-
%foreign law will not be applied if it contravenes prohibitive law
or public policy of the forum
2agreement stipulating the specific law as the applicable law may
not be enforced when the relationship of the contracting parties
affects public interest in the country of one of the parties
?r the substantial contracts arising therefrom point to the law of
another country as applicable law, or such agreement contravenes
the prohibitive law or the public policy of the forum
DIFFERENT THEORIES WH. FOREIGN LAW SHOULD
BE GI/EN EFFECT
% T!eor o% Comi$ @ foreign law is applied because of its
convenience 1 because we want to give protection to our
citi>ens, residents, 1 transients in our land
2 T!eor o% /es$e* Rig!$s @ we see8 to enforce not foreign
law itself but the rights that have been vested under such
foreign law* an act done in another state may give rise to the
e2istence of a right if the laws of that state crated such right
, T!eor o% Lo&al Law7 adherents of this school of thought
believe that we apply foreign law not because it is foreign,
but because our laws, by applying similar rules, re3uire us to
do so* hence, it is as if the foreign law has become part 1
parcel of our local law
. T!eor o% Harmon o% Laws @ theorists here insist that in
many cases we have to apply the foreign laws so that
wherever a case is decided, that is, irrespective of the forum,
the solution should be appro2imately the same* thus,
identical or similar solutions anywhere 1 everywhere Ahen
the goal is reali>ed, there will be :harmony of laws;
5 T!eor o% 0,s$i&e @ the purpose of all laws, including
Conflict of Baws, is the dispensing of 4ustice* if this can be
attained in may cases applying the proper foreign law, we
must do so
CONSENT BE GI/EN IN THE FORM OF 1E#'ress2 -
%law adopting a foreign law (li8e in the C?-#")
2or that a local law points to a foreign law as the applicable law
(art%= of CC states that the law governing the form and solemnities
of contracts or wills where they have been e2ecuted)
,#ec %20 of Corporation Code provides that the law of
incorporation of a foreign corporation in all matters of its internal
affairs be applied
.entering into treaty or adhering to an international convention
Im'lie* Consen$-
%observance of the (rinciples of Comity
FOREIGN ELEMENT may consist of :
%a (hilippine citi>en or resident of the country in relation to a
foreign country or property situated therein
2property located in the (hilippines involving a foreign national
or entity and a citi>en of this county
CONFLICT OF LAWS ESSENTIALL. IN/OL/ES TWO REMEDIES-
%enforcement of rights that accrued completely or partly in a
foreign country in the form of action filed in (hilippine courts by a
citi>en or an aggrieved person(not necessarily a citi>en)
2recognition and enforcement of foreign 4udgment ,in the form of
a petition filed in (hilippine courts by the prevailing party
W!en a 'ar$ in"o3es %oreign law as (asis %or !is &a,se o%
a&$ion or *e%ense) or w!en !e relies on %oreign *o&,men$ $o
s,''or$ !is &laim or *e%ense) an* s,&! law or 4,*gmen$ is no$
&on$rar $o lo&al law) !e !as $o allege an* 'ro"e $!e same
77foreign laws do not prove themselves in the country, nor can the
courts ta8e 4udicial notice of them Bi8e any other fact, they must
be alleged and proved
6ailure to do so may give rise to the presumption that the foreign
law is similar to (hilippine law on the matter (processual
presumption), or in case of foreign document, the seem will not be
admissible in evidence
GenR,le- %oreign *o&,men$s (e%ore $!e &an (e a*mi$$e* in
e"i*en&e in o,r &o,r$s m,s$ (e *,l a,$!en$i&a$e*+ B,$ sin&e
',(li& *o&,men$s are generall irremo"a(le %rom w!ere $!e
are o%%i&iall 3e'$) %or $!is reason) ',(li& *o&,men$s $o (e ,se*
as e"i*en&e ma (e e"i*en&e ( an o% $!e %ollowing-
%official publication
2by certified true copy or one attested by the officer having the
legal custody of the record ,or by his deputy ,and accompanied ,if
the record is not 8ept in the (hilippines with a certificate that such
officer has custody
,if office in which the record is 8ept is in a foreign country, copy
of the document should have a certificate mayd by the secretary of
the embassy or legation,consul general ,consul ,vice consul or
consular agent or by any officer in the foreign service of the
(hilippines stationed in the foreign country in which the record is
8ept and authenticated by the seal of his office
Foreign laws ma ei$!er ( wri$$en or ,nwri$$en+ For wri$$en)
$o (e a*missi(le )i$ m,s$ &om'l wi$! $!e %% re5,iremen$s-
%official publication containing the foreign law must be submitted
2if no official publication can be submitted,
athe copy of the foreign law must be attested by the officer having
legal custody of the records or by his deputy
band same must be accompanied by a certificate of a secretary of
embassy or legation, consul general, consul, vice7consul or
consular agent or foreign service officer of the (hilippines with the
seal of the office and duly ribboned
77 this re3uirement is to 4ustify the giving of full faith and credit to
the genuineness of a document in a foreign country
2005 notes: (arol evidence is not sufficient to prove written
foreign laws, as the best evidence is not sufficient to prove written
foreign laws, as the best evidence rule re3uires that they be prove
by duly authenticated copy of the statute
77absent any of these ,the foreign law is not deemed established
and the same will be presumed to be the same as (hilippine law
2005 notes: mere Cero2 copy of foreign lawDdocument if even if
duly identified by a 8nowledgeable person from the foreign
country is not sufficient to prove foreign law
2005 notes:rules of authentication do not apply to administrative
proceedings before the administrative tribunals ,where the
technical rules of procedure and evidence are not applicable
Wi$! regar* ,nwri$$en law-
?ral testimony of e2pert witnesses is admissible, as are printed and
public boo8s of reports of decisions of the courts of the country
concerned if proved to be commonly admitted in such court
GenR,le- P!ili''ine &o,r$s are no$ a,$!ori6e* $o $a3e 4,*i&ial
no$i&e o% %oreign laws +
E2ception:
%where there are e2ceptional circumstances when the foreign laws
are already within the actual 8nowledge of the court
77 as they have actually ruled upon in other cases
2where courts are familiar with specific foreign laws
77such as the #panish Civil code ,common law doctrines and the
rules from which (hilippine laws are derived
,where foreign law such as that of the &evada law was proved in
accordance with secs 2.725 of /ule %,2 of the /ules of Court and
introduced as evidence in the probate of the will of a citi>en of
&evada, such circumstances 4ustified the court to ta8e 4udicial
notice of said foreign law in another case involving the partition of
the estate of the decedent even though the provisions of said law
were not presented in the form and manner provided by the /ules
of Court where theadverse party did not dispute the 3uoted
provisions of law of &evada
.speciali>ed 3uasi74udicial agencies may ta8e 4udicial notice of
foreign law even if foreign law has not been alleged and proved
since the general rule applies only to cases filed in courts and not
to cases before the administrative or 3uasi74udicial bodies which by
reason of their mandated functions have become familiar with the
applicable foreign laws
7 WA.S OF DEALING WITH A CONFLICTS PROBLEM-
8+ Co,r$ ma re%,se $o !ear $!e &ase an* *ismiss $!e &ase %or
la&3 o% 4,ris*i&$ion) or on $!e gro,n* o% %or,m non9
&on"eniens
2005 notes: Court refuses to hear the case since there may be
minimum contact with respect to transactions or the parties
such that it may be convenient to have the case tried in
another forum and where essential elements e2ist in that
another forum since it is more convenient for parties to
litigate therein in accordance with the principleof 6orum non
conveniens
DOCTRINE OF FORUM NON CONVENIENS 7 the
forum is inconvenient* the ends of 4ustice would be best
served by trial in another forum* the controversy may be
more suitably tried elsewhere
FACTORS THAT INFLUENCE COURT TO DESIST-
a+For,m Non Con"eniens
7evidence 1 witness not available
7easy to present evidence notari>ed than that not notari>ed
7court doc8ets clogged (it must hamper admin of 4ustice)
7evil of forum shopping
7forum no interest in case
7case can be tried in another court
(+Presen&e o% In$erna$ional Trea$ies
7Aorld trade "greement
7Cognovit: "greement in contract whereby if there is
complaint, it should be filed in a certain court
7Bong "rm statute: #tatutes allowing the courts to e2ercise
4urisdiction when there are minimum contacts between the
non7resident defendant and the forum
:+ Co,r$ mig!$ *e&i*e $!e &ase ( i$s own lo&al law
(hilippines usually adheres to this second way
$t is not so much concerned with the law of a foreign country
as it decides the case by its own local law, as if the case is
any other domestic case
a APPL. INTERNAL LAW 7 forum law should be
applied whenever there is good reason to do so* there is
a good reason when any one of the following factors is
present:
i+ A s'e&i%i& law o% $!e %or,m *e&rees $!a$
in$ernal law s!o,l* a''l
Examples:
"rticle %< of the Civil Code 7 real and
personal property sub4ect to the law of the
country where they are situated and
testamentary succession governed by lex
nationalii
"rticle F20 of the Civil Code 7 ma8es
revocation done outside (hilippines valid
according to law of the place where will was
made or lex domicilii
"rticle F%0 of the Civil Code 7 prohibits
6ilipinos from ma8ing 4oint wills even if
valid in foreign country
ii+ T!e 'ro'er %oreign law was no$ 'ro'erl
'lea*e* an* 'ro"e*
NOTICE AND PROOF OF FOREIGN LAW
"s a general rule, courts do not ta8e 4udicial
notice of foreign laws* 6oreign laws must be
pleaded and proved
Effect of failure to plead and prove foreign
law (, alternatives) of the forum court:
(a) )ismiss the case for inability to
establish cause of action
(b) "ssume that the foreign law of the
same as the law of the forum
(c) "pply the law of the forum
iii+ T!e &ase %alls ,n*er an o% $!e e#&e'$ions
$o $!e a''li&a$ion o% %oreign law
Exceptions to application o orei!n la":
(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,
real or personal (le2 situs)
(d) The issue involved in the enforcement of
foreign claim is fiscal or administrative
(e) The foreign law or 4udgment is contrary to
good morals (contra #onos mores)
(f) The foreign law is penal in character
(g) Ahen application of the foreign law may
wor8 undeniable in4ustice to the citi>ens of
the forum
(h) Ahen application of the foreign law might
endanger the vital interest of the state
(i) APPL. FOREIGN LAW 9 when properly pleaded and
proved
2005 notes: where 3uestions involve the rights of a citi>en and a
foreigner which latter has violated, in a case where the applicable
law favors the foreigner, (hilippine courts will favor to the rights
of the citi>en in order to subserve the ends of 4ustice
77and that, the law of the forum, in case of doubt ,should tilt the
balance in favor of its citi>ens or its interest as a nation(.blue05)
7+ s'e&ial r,les mig!$ (e *e"ise* $o *eal wi$! $!e &ase $o
'romo$e $!e smoo$! %,n&$ion o% $!e in$erna$ional an*
in$ers$a$e ss$ems an* $o *o 4,s$i&e $o $!e 'ar$ies+
The court assumes 4urisdiction and sei>es the occasion as the
opportunity to formulate or refine rules of conflict of laws
ta8ing into account not only the relevant local laws but also
general principles and policies on the matter
Thus, rules of conflict of laws are largely decisional and a
court applies its own law including concepts of conflict of
laws
DOCTRINE OF ;UALIFICATION -
!efore a choice of law can be made, it is necessary to determine
under what category a certain set of facts or rules fall #uch
process is 8nown as characteri>ation or 3ualification
The purpose of characteri>ation is to enable the court of the forum
to select the proper law
$n deciding how a matter should be characteri>ed for conflict of
laws purposes, the law of the forum should control or that the
characteri>ation of actions should be made in accordance with the
law of the forum
e2ception is when the law of the situs of tangible
property determines whether it is to be classified or
characteri>ed as real or personal property
POSSIBLE TEST TO DETERMINE THE APPLICABLE LAW-
%nationality of a person ,his domicile ,his residence, his place of
so4ourn or his origin(.blue05)
2seat of a legal or 4uridical person, such as a corporation
,place where a thing is or is deemed to be situated (le2 situs is
decisive when real rights are involved)
.place where an act was been done Be2 loci actus is particularly
important in contracts and torts
5place of performance of contractual duties or place where a
power of attorney is to be e2ecuted
<intention of the contracting parties as to the law should govern
their agreement ,the le2 loci intentionis
=le2 fori (law of the forum) applies whenever the content of the
otherwise applicable foreign law is e2cluded from application in a
given case for the reason that it fails under one of the e2ceptions to
the application of foreign law
Fflag of the ship especially with the master and owner relationship
and the contract of affreightment
PRINCIPLES IN DETERMINING THE APPLICABLE LAW 1US
RESTATEMENT OF LAW2-
8+&o,r$ )s,(4e&$ $o &ons$i$,$ional res$ri&$ions) will %ollow a
s$a$,$or *ire&$i"e o% i$s own s$a$e on &!oi&e o% law
:+w!en $!ere is no s,&! *ire&$i"e) $!e %a&$ors rele"an$ $o &!oi&e
o% a''li&a(le law in&l,*es-
aneeds the interstate and international systems
brelevant policies of other interested states and the relative
interests of those states in the determination of the particular issue
crelevant policies of the forum
dprotection of 4ustified e2pectations
ebasic policies underlying the particular field of law
fcertainty, predictability and uniformity of result
gcase in determination and application of the law to be applied
PARTIES MA. STIPULATE AS TO WHAT LAW SHOULD GO/ERN IN
CASE OF DISPUTE ARISING FROM THEIR CONTRACT) IN THE
ABSENCE OF PROHIBITI/E LAW OR PUBLIC POLIC. PRO/IDING
OTHERWISE+
+nder section %F= of the +# /estatement of Baw, it states that:
%law of the state chose by the parties to govern their contractual
rights and duties will be applied if the particular issue is one which
the parties could have resolved by an e2plicit provisions in their
agreement directed to that issue
2law of the state chosen by the parties to govern their contractual
rights and duties will be applied , even if the particular issue is one
which the parties could not have resolved by an e2plicit provision
in their agreement directed to that issue, unless either:
achosen state has no substantial relationship to the parties or the
transaction and there is no other reasonable basis for the parties9
choice or
bapplication of the law of the chosen state would be contrary to a
fundamental policy of a state which has materially greater interest
than the chosen state in the determination of particular issue and
which ,under the rule of %FF would be the state of the applicable
law in the absence of an effective choice of law by parties

,in absence of a contrary indication of intention, the reference is
to the local law of the state of the chosen law
2005 notes: Ahere local law directs the choice of applicable law
,the court should follow the directive
2005 notes: (arties cannot stipulate as to 4urisdiction of the court
over the sub4ect matter since it is fi2ed by law or the Constitution
and they cannot change it or vest it in a foreign court
W!ere $!ere is no agreemen$ as $o a''li&a(le law
%rights and duties of parties with respect to an issue in contract are
determined by the local law of the state which, with respect to that
issue has the most significant relationship to the transaction and
the parties
2in absence of an effective choice of law by parties, the contacts
to be ta8en into account in determining the law applicable to an
issue include:
aplace of contracting
bplace of negotiation of the contract
cplace of performance
dlocation of the sub4ect matter of the contract
edomicile, residence, nationality ,place of incorporation and place
of business of the parties
,if place of negotiating contract and the place of performance are
in same state, the local state will be applied
PHILIPPINE LAWS WHICH DIRECT WHAT FOREIGN LAW SHOULD
THE COURT FOLLOW-
8+Ar$i&le 8< o% Ci"il Co*e
NATIONALIT. THEOR. $ by virtue of which the status and
capacity of an individual are generally governed by the law of his
nationality
DOMICILIAR. THEOR. 7 in general, the status, condition, rights,
obligations, 1 capacity of a person should be governed by the law
of his domicile
"rticle %5 adopts the nationality or citi>enship theory Thus ,
(hilippine laws relating to family rights (and duties), or to the
status(birth,marriage,minor,change of name G) ,condition and
legal capacity of persons are binding upon citi>ens of the
(hilippines even though living abroad
Thus, (hil laws on marriage and its incidents or conse3uences,
divorce , declaration of nullity of marriage, annulment of marriage,
legal separation, support , marital status are binding upon a
citi>en ,as well as 3uestion of how he may strip himself of his
status as such citi>en (.blue05)
/E") (rovisions of Civil Code on Civil (ersonality (,=7.<)
:)Ar$i&le 8= o% Ci"il Co*e
Art. 16, 1. Real 'ro'er$ as well as 'ersonal
'ro'er$ is s,(4e&$ $o $!e law o% $!e &o,n$r w!ere i$ is
s$i',la$e*+
Lex sit%s or lex rei sitae governs real or personal property (property
is sub4ect to the laws of the country in which it is located)
$n Ta&a! vs' (en!%et consolidated, the #C said that (hilippine law
shall govern in cases involving shares of stoc8 of a (hilippine
corporation even if the owner is in the +#
Art. 16, 2+ Howe"er) in$es$a$e an* $es$amen$ar s,&&essions)
(o$! wi$! res'e&$ $o $!e or*er o% s,&&ession an* $o $!e amo,n$
o% s,&&essional rig!$s an* $o $!e in$rinsi& "ali*i$ o%
$es$amen$ar 'ro"isions) s!all (e reg,la$e* ( $!e na$ional law
o% $!e 'erson w!ose s,&&ession is ,n*er &onsi*era$ion)
w!a$e"er ma (e $!e na$,re o% $!e 'ro'er$ an* regar*less o%
$!e &o,n$r w!erein sai* 'ro'er$ ma (e %o,n*+
This is merely an e2tension of the nationality theory in "rticle %5
The national law of the decedent regardless of the location of the
property shall govern Thus, the national law of the decedent shall
determine who will succeed
$n )iciano vs' (rimo, the #C said that the will of a foreigner
containing the condition that the law of the (hilippines should
govern regarding the distribution of the properties is invalid
$n A*nar vs' Garcia, what was involved was the renvoi doctrine
$n this case, the decedent was a citi>en of California who resided in
the (hilippine The problem was that under (hilippine law, the
national law of the decedent shall govern ?n the other hand,
under California law, the law of the state where the decedent has
his domicile shall govern The #C accepted the referral by
California law and applied (hilippine law (single renvoi)
Problem: Ahat if the decedent is a 6ilipino domiciled in a foreign
country which follows the domiciliary theoryHone way to resolve
the situation is this @ (hilippine law should govern with respect to
properties in (hilippine while the law of the domicile should
govern with respect to properties located in the state of domicile
7+Ar$i&le 8> o% Ci"il Co*e
Art. 17. T!e %orms an* solemni$ies o% &on$ra&$s) wills) an*
o$!er ',(li& ins$r,men$s s!all (e go"erne* ( $!e laws o% $!e
&o,n$r in w!i&! $!e are e#e&,$e*+
W!en $!e a&$s re%erre* $o are e#e&,$e* (e%ore $!e *i'loma$i&
or &ons,lar o%%i&ials o% $!e Re',(li& o% $!e P!ili''ines in a
%oreign &o,n$r) $!e solemni$ies es$a(lis!e* ( P!ili''ine laws
s!all (e o(ser"e* in $!eir e#e&,$ion+
Pro!i(i$i"e laws &on&erning 'ersons) $!eir a&$s or 'ro'er$)
an* $!ose w!i&! !a"e %or $!eir o(4e&$ ',(li& or*er) ',(li&
'oli& an* goo* &,s$oms s!all no$ (e ren*ere* ine%%e&$i"e (
laws or 4,*gmen$s 'rom,lga$e*) or ( *e$ermina$ions or
&on"en$ions agree* ,'on in a %oreign &o,n$r+
Lex loci cele#rationis (formal re3uirements of contracts,
wills, and other public instruments are governed by the
country in which they are e2ecuted)
Thus, the formal re3uirements of a contract involving real
property in the (hilippines must follow the formal
re3uirements of the place where the contract was entered
into Iowever, if what is involved is not the formal
re3uirements, then the law of the place where the properties
(whether real or personal) are located shall govern
?+Se&$ion 8:@ o% $!e Cor'ora$ion Co*e
Corporations internal affairs (creation, dissolution, duties of
stoc8holders etc) shall be governed by the laws of the country of
their creation or where they are incorporated
Thus, where a foreign corp doing and duly licensed to do business
in the (hilippines is incorporated in +#", #ection %20 directs
(hilippine courts to apply the laws of +#" in any of these internal
affairs
<+W!ere P!ili''ine law is silen$) P!ili''ine &o,r$s are no$
4,s$i%ie* $o e#$en* $!e %or&e an* e%%e&$ o% %oreign law
"n e2ception is when Congress enacts a law adopting or copying a
specific foreign statute and that in construing an adopted statute ,it
is proper for (hilippine courts to ta8e into consideration the
construction of law by the courts of the country from which it is
ta8en, as well as the law itself and practices under it for the
legislature is presumed to have adopted such construction with the
adoption of the law
In ABSENCE o% lo&al law *ire&$ing $!e &o,r$ $o a''l a %oreign
law or in a(sen&e o% a "ali* agreemen$ (e$ween $!e 'ar$ies as
$o w!a$ law s!o,l* go"ern in &ase o% *is',$e) $!e 'rin&i'les
a''lie* in *e$ermining w!a$ law s!o,l* go"ern are-
8+s,(s$an&e "ers,s 'ro&e*,ral *is$in&$ion
$t is a problem of characteri>ation
-eneral rule, all matters of procedure are governed by the law of
the forum, where the case is filed, while matters of substance are
goverened by the law of the country where the cause of action
arose
Iowever, the problem arises when one country considers
procedural matters as substantive and the other country considers
them as procedural matters as substantive and the other country
considers them as procedural
E2: in country " ,the period of limitation of an action for damages
arising from gross negligence is . yrs, in country ! ,it is , yrs and
in country C it is 2 yrs The case is filed in " for in4uries suffered
by national of C caused by national of !, in which the casue of
action has prescribed
IEB): $f that of ! country , the court in " will have to dismiss the
case, as the cause has prescribed
?ne of the tests applied is the governmental interest analysis,
which states that the prescriptive period of the country whose
interest will be impaired the most by the failure to apply its statute
should apply in the case
2005 notes: /ule on characteri>ation not apply where the country
in which the case is filed has a borrowing law, as in our country
which states that if the cause of action in the country where the
cause arose has prescribed ,it will also be considered as having
prescribed in our country even when local law has a longer period
of prescription(.blue05)
:+&en$er o% gra"i$Agro,'ing o% &on$ra&$s
"pplication of the law of the 4urisdiction which has the most
significant relationship to or contact with event and parties to
litigation and the issue therein
"pplied in contracts and torts #ynonymous with the mos$
signi%i&an$ $!eor, whereby the law of the state which has the
most significant relationship with the occurrence and with the
parties determines their rights and liabilities in tort or in contract
$n determining the relative importance of the contracts, the forum
will consider the issues , the character of the tort or contract, and
the relevant purposes of the rules involved
6ollowing contract are to be ta8en into account and evaluated
according to their relative importance with respect to the particular
issue:
aplace where in4ury occurred
bplace where conduct causing the in4ury occurred
cdomicile, residence, nationality, place of incorporation, and place
of business of parties
dplace where the relationship of parties is centered
7+ren"oi 1$a(le $ennis $!eor2
Court in resorting to foreign law adopts rules of foreign country as
to conflict of law which rule may in turn refer bac8 to law of the
forum
)octrine whereby a 4ural matter is presented which the conflict of
laws rules of the forum refer to a foreign law which in turn, refers
the matter bac8 to the law of the forum or a third state Ahen
reference is made bac8 to the law of the forum, this is said to be
JremissionJ while reference to a third state is called
JtransmissionJ
Tur8 e2ecuted in the /( a will, whereby, observing /( laws, he
stated that his estate be distributed in accordance with /( law on
succession
IEB): Koid since estate must be distributed in accordance with
the laws of his country and not the law of /( ("rt %< provides that
:real as well as personal property is sub4ect to law of the country
where it is situated;)
2005 notes: Iowever, intestate and testamentary succession, both
wD respect to : order of succession, amount of successional rights
and the intrinsic validity of testamentary provision shall be
regulated by the national law of person whose succession is under
consideration whatever is the nature of the property and regardless
of the country wherein said property may be found
2005 notes: $f Tur8ish law allows the distribution of property in
accordance with /( laws, still the provision is to be regarded as
void since it contravenes "rt %<
2005 notes: $f deceased was a citi>en of California but was
domiciled in /( at time of death,we ordinarily apply California
law but since such it provides that succesional rights shall be
governed by law of place of domicile (the (hilippines) we should
apply our law to avoid international football $n effect ,we would
be accepting the /E&K?$ (return to us) doctrine
2005 notes: /envoi is only applicable where decedent is a national
of one country and a domiciliary of another and not when the
decedent is both a national and domiciliary of one country (see 2
nd
2005 notes under intrinsic)
?+le# %ori
Baw of the forum or court is the positive law of the country or
4urisdiction of whose 4udicial system the court where the suit is
brought or remedy sought is an integral part
Be2 loci or law of 4urisdiction in which relief is sought controls as
to all matters pertaining to remedial (procedural) as distinguished
from substantial rights
OTHER THEORIES IN CHOICE OF LAW-
8+German R,le o% Ele&$i"e O&&,rren&e
Tort is committed in both the place of where the actor engages in
his conduct and the place where the effects of such conduct ,such
as the in4ury against the in4ured person, may occur
(lace of court is whenever an essential part of the tort has been
committed and the in4ured person may choose to sue in either of
the places, which to him is most advantageous to his claim
:+S$a$e9in$eres$ analsis
Court ta8es into account the interest of the state in issue, not only
as a sovereign in a set of facts or an entity but as a repository of
4ustice
7+Ca"erBs Prin&i'le o% Pre%eren&e
Ahere there is no conflict of law rules in the forum, the court
applies general principles to arrive at 4ust solutions by
accommodating conflicting policies and affording fair treatment of
the parties caught in the conflict between state policies
Court ,face with a conflict of laws case has to decide the same by
applying:
%written laws
2customs of the place
,by 4udicial decisions
.general principles of law
5principles of 4ustice, reason and e3uity
: CINDS OF CONFLICT RULES-
%?ne sided rule7 it indicates when (hilippines internal law will
apply (art %5 of Civil Code)
2"ll sided rule7which indicates when 6oreign Baw is to be applied
(art %< par 2 of Civil Code)
Com'osi$ion o% Con%li&$ r,les-
%factual situation @ set of facts presenting a conflicts problem
2point of contact(connecting factor)7 law of country with which
the factual situation is most intimately connected
WH. NOT ALL FOREIGN 0UDGMENTS CAN BE RECOGNIDED OR
ENFORCED IN OUR COUNTR.-
%re3uisite proof may not be ade3uate
2contravene our established public policies
,contradict one another, obviously, we cannot be guided by
contradictions
.administration of 4ustice may be shoc8ingly corrupt
Con*i$ions (e%ore Foreign 0,*gmen$ ma (e re&ogni6e* an*
en%or&e*-
%proof of 6oreign 5udgment (no necessity for separate action for
recognition)
24udgment must be on civil or commercial matter
,there must be lac8 of 4urisdiction ,no want of notice, no
collusion, no fraud ,no clear mista8e of lawDfact
.4udgment must not contravene a sound and established public
policy
54udgment must be /E# 5+)$C"T" in the state that rendered it
/e3uisites for res judict
a 6inal former 4udgment
b 5udgment is on the merits
c /endered by a court of competent 4urisdiction
d !etween first and second actions, identity of sub4ect
matter, parties and cause of action
SOURCES o% Pri"a$e In$erna$ional Law-
)$/ECT:
% Constitutions
2 Codifications
% #pecial Baws
2 Treaties and Conventions
, 5udicial )ecisions
. $nternational Customs
$&)$/ECT:
% &atural moral law
2 Aor8 of writers
CHARACTERIDATION-
(rocess of determining under what category a certain set of facts or
rules fall
Fa&$ors w!i&! gi"e rise $o C!ara&$eri6a$ion-
%)ifferent legal systems attach to the same legal term with
different meanings
2)ifferent legal systems may contain ideas or concepts
completely un8nown to one another
,)ifferent legal systems apply different principles for the solution
of problems which in general terms are of common nature
STEPS IN CHARACTERIDATION-
%)etermination of facts involved
2Characteri>ation of factual situation
,)etermination of Conflicts rule which is to be applied
.Characteri>ation of the point of contact
5Characteri>ation of the problem as procedural or substantial
<(leading and (roving of the proper foreign law
="pplication of the proper foreign law to the problem
THEORIES ON CHARACTERIDATION-
8+LEE FORI 7 law of the forum* that is, the positive law of the
state, country or 4urisdiction of whose 4udicial system of the court
where the suit is brought or remedy is sought is an integral part
#ubstantive 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 ori)
:+LEE CAUSAE F follow the characteri>ation of foreign state which
is the principal point of contract
7+UNI/ERSAL ANAL.TICAL9 characteri>ation comes only after a
general comparative analytical study of 4urisdiction of all states
?+DUAL THEOR. OF LEE FORI AND LEE CAUSAE9 instead of
worldwide, the only characteri>ation is that of le2 fori or le2
causae
<+AUTONOMOUS THEOR.9 characteri>ation of forum of state "
points to state ! ,then ! to C, it is characteri>ation of state C which
must be used
=+TOTALIT. THEOR.9get the law intended by parties to apply and
then proceed to apply the characteri>ation intended by law
OTHER MATTERS-
LEE SITUS 7 law of the place where property is situated* the
general rule is that lands and other immovables are governed by
the law of the state where they are situated
LEE MERCATORIA 7 law merchant* commercial law* 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
LEE NON SCRIPTA 7 the unwritten common law, which includes
general and particular customs and particular local laws
LEE PATRIAE 7 national law
LEE DOMICILII 7 law of the domicile* in conflicts, the law of oneLs
domicile applied in the choice of law 3uestions
LEE LOCI 7 law of the place
BEC B?C$ C?&T/"CT+# 7 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
BEC B?C$ /E$ #$T"E 7 law of the place where the thing or sub4ect
matter is situated* the title to realty or 3uestion of real estate law
can be affected only by the law of the place where it is situated
BEC B?C$ "CT+# 7 law of the place where the act was done
BEC B?C$ CEBE!/"T$?&$# 7 law of the place where the contract is
made
BEC B?C$ #?B+T$?&$# 7 law of the place of solution* the law of the
place where payment or performance of a contract is to be made
BEC B?C$ )EB$CT$ C?''$##$ 7 law of the place where the crime
too8 place