You are on page 1of 14

ONFLICTS 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 CONFLICT OF LAW LAW OF NATIONS
1 Nature Municipal in character International in character
2 Persons
involved
Dealt with by private individuals;
governs individuals in their private
transactions which involve a
foreign element
Sovereign states and other entities
possessing international
personality, e.g., UN; governs
states in their relationships
amongst themselves
3 Transactions
involved
Private transactions between
private individuals
Generally affected by public
interest; those in general are of
interest only to sovereign states
4 Remedies and
Sanctions
Resort to municipal tribunals May be peaceful or forcible
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 measures under the UN
Charter, and war.
SOURCES:
Direct:
1. Constitutions
2. Codifications
1. Special Laws
2. Treaties and Conventions
3. Judicial Decisions
4. International Customs
Indirect:
1. Natural moral law
1. Work of writers
TERMS:
Lex Domicilii – law of the domicile; in conflicts, the law of one’s domicile applied in the choice
of law questions
Lex Fori – law of the forum; that is, the positive law of the state, country or jurisdiction of
whose judicial system of the court where the suit is brought or remedy is sought is an integral
part. 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 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 - 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
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; 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; 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
Lex Non Scripta – the unwritten common law, which includes general and particular customs
and particular local laws
Lex Patriae – 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, refers the matter back to the law of the forum or
a third state. When reference is made back to the law of the forum, this is said to be “remission”
while reference to a third state is called “transmission.”
Nationality Theory - by virtue of which the status and capacity of an individual are generally
governed by the law of his nationality. This is principally adopted in the RP
Domiciliary Theory – in general, the status, condition, rights, obligations, & capacity of a
person should be governed by the law of his domicile.
Long Arm Statutes – Statutes allowing the courts to exercise jurisdiction when there are
minimum contacts between the non-resident defendant and the forum.
WAYS OF DEALING WITH A CONFLICTS PROBLEM:
1. Dismiss the case for lack of jurisdiction, or on the ground of forum non-conveniens
DOCTRINE OF FORUM NON CONVENI ENS – the forum is inconvenient; the ends of
justice would be best served by trial in another forum; the controversy may be more suitably
tried elsewhere
1. Assume jurisdiction and apply either the law of the forum or of another state
1. i. A specific law of the forum decrees that internal law should apply
1. APPLY INTERNAL LAW – 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:
Examples:
 Article. 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. ii. The proper foreign law was not properly pleaded and proved
NOTI CE AND PROOF OF FOREI GN LAW
 As a general rule, 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. 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, real or personal (lex situs)
(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. APPLY FOREIGN LAW – when properly pleaded and proved
THEORIES WHY FOREIGN LAW SHOULD BE GIVEN EFFECT
1. Theory of Comity – foreign law is applied because of its convenience & because we
want to give protection to our citizens, residents, & transients in our land
2. Theory of Vested Rights – we seek 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
existence of a right if the laws of that state crated such right.
3. Theory of Local Law- 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, require us
to do so; hence, it is as if the foreign law has become part & parcel of our local law
4. 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, that is, irrespective of the forum, the
solution should be approximately the same; thus, identical or similar solutions anywhere
& everywhere. When the goal is realized, there will be “harmony of laws”
5. Theory of Justice – the purpose of all laws, including Conflict of Laws, is the dispensing
of justice; if this can be attained in may cases applying the proper foreign law, we must
do so
Rules on Status in General
Factual Situation Point of Contact
1 Beginning of personality of natural person National law of the child (Article 15, CC)
2 Ways & effects of emancipation Same
3 Age of majority Same
4 Use of names and surnames Same
5 Use of titles of nobility Same
6 Absence Same
7 Presumptive death & survivorship Lex fori (Article 43, 390, 391, CC; Rule
131 §5 [jj], Rules of Court)
Rules on Marriage as a Contract
FACTUAL SITUATION POINT OF CONTACT
Celebrated
Abroad
Between Filipinos Lex loci celebrationis is without prejudice
to the exceptions under Articles 25, 35 (1,
4, 5 & 6), 36, 37 & 38 of the Family Code
(bigamous & incestuous marriages) &
consular marriages
Between Foreigners Lex loci celebrationis EXCEPT if the
marriage is:
1. Highly immoral (like bigamous/
polygamous marriages)
2. Universally considered incestuous
(between brother-sister, and
ascendants-descendants)
Mixed Apply 1 (b) to uphold validity of marriage
Celebrated
in RP
Between Foreigners National law (Article 21, FC) PROVIDED
the marriage is not highly immoral or
universally considered incestuous)
Mixed National law of Filipino (otherwise public
policy may be militated against)
Marriage by proxy (NOTE: a marriage by
proxy is considered celebrated where the
proxy appears
Lex loci celebrationis (with prejudice to
the foregoing rules)
Rules on Marriage as a Status
FACTUAL SITUATION POINT OF CONTACT
1 Personal rights & obligations between
husband & wife
National of husband
(Note: Effect of subsequent change of
nationality:
1. If both will have a new nationality
– the new one
2. If only one will change – the last
common nationality
3. If no common nationality –
nationality of husband at the time
of wedding)
2 Property relations bet husband & wife 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. This is the DOCTRINE OF
IMMUTABILITY IN THE
MATRIMONIAL PROPERTY
REGIME)
Rules on Property
FACTUAL SITUATION POINT OF CONTACT
Real property Lex rei sitae (Article 16, CC)
Exceptions Successional rights National law of decedent (Article 16 par.
2, CC)
Capacity to succeed National law of decedent (Article. 1039)
Contracts involving real property which
do not deal with the title thereto
The law intended will be the proper law of
the contract (lex loci voluntantis or lex loci
intentionis)
Contracts where the real property is given
as security
The principal contract (usually loan) is
governed by the proper law oft the
contract – (lex loci voluntatis or lex loci
intentionis)
NOTE: the mortgage itself is governed by
lex rei sitae. There is a possibility that the
principal contract is valid but the
mortgage is void; or it may be the other
way around. If the principal contract is
void, the mortgage will also be void (for
lack of proper cause or consideration),
although by itself, the mortgage could
have been valid.
Tangible personal property (choses in possession)
1 In General Lex rei sitae (Article. 16, CC)
Exceptions: same as those for real
property
EXCEPTION: same as those for real
property EXCEPT that in the example
concerning mortgage, the same must be
changed to pledge of personal property)
2 Means of Transportation
Vessels Law of the flag (or in some cases, place of
registry)
Other means Law of the depot (storage place for
supplies or resting place)
3 Things in transitu (these things have a
changing status because they move)

Loss, destruction, deterioration Law of the destination (Article. 1753, CC)
Validity & effect of the seizure of the
goods
Locus regit actum (where seized) –
because said place is their temporary situs
Disposition or alienage of the goods Lex loci volutantis or lex loci intentionis –
because here there is a contract

FACTUAL SITUATION POINT OF CONTACT
INTangIBLE PERSONAL PROPERTY
(CHOSES IN ACTION)

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 Lex loci voluntatis or lex loci intentionis
(proper law of the contract)
Other Theories:
1. National law of the debtor or creditor
2. Domicile of the debtor or creditor
3. Lex loci celebrationis
4. Lex loci solutionis
3 Taxation of debts Domicile of creditor
4 Administration of debts Lex situs of assets of the debtor (for these
assets can be held liable for the debts)
5 Negotiability or non-negotiability of an
instrument
The right embodied in the instrument (for
example, in the case of a Swedish bill of
exchange, Swedish law determines its
negotiability)
6 Validity of transfer, delivery or negotiation
of the instrument
In general, situs of the instrument at the
time of transfer, delivery or negotiation
7 Effect on a corporation of the sale of
corporate shares
Law of the place incorporation
8 Effect between the parties of the sale of
corporate shares
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)
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
13 Patents, copyrights, trademarks, trade
names
In the absence of a treaty, they are
protected only by the state that granted
them
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, Succession & Administration of Conflict Rules
FACTUAL SITUATION POINT OF CONTACT
Extrinsic Validity of Wills
1 Made by an alien abroad Lex nationalii OR lex domicilii OR RP law
(Article 816, CC), 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 POINT OF CONTACT
Extrinsic Validity of Joint Wills (made in the
same instrument)

1 Made by Filipinos abroad Lex nationalii (void, even if valid where
made) (Article 819)
2 Made by aliens abroad Valid if valid according to lex domicilii or
lex loci celebrationis (Article 819)
3 Made by aliens in the RP 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
Intrinsic Validity of Wills Lex nationalii of the deceased – regardless
of the LOCATION & NATURE of the
property (Article 16 (2))
Capacity to Succeed Lex nationalii of the deceased – not of the
heir (Article 1039)
Revocation of Wills
1 If done in the RP Lex loci actus (of the revocation) (Article.
829)
2 If done OUTSIDE the RP
1. By a NON-DOMICILIARY Lex loci celebrationis (of the making of the
will, NOT revocation), OR lex domicilii
(Article 829)
1. By a DOMICILIARY of the RP Lex domicilii (RP law) OR lex loci actus
(of the revocation) (Article 17)
Probate of Wills Made Abroad
1 If not yet probated abroad Lex fori of the RP applies as to the
procedural aspects, i.e., the will must be
fully probated here & due execution must
be shown
2 If already probated abroad Lex fori of the RP again 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
Executors and Administrators
1 Where appointed Place where domiciled at death or incase
of non-domiciliary, where assets are found
2 Powers Co-extensive with the qualifying of the
appointing court – powers may only be
exercised within the territorial jurisdiction
of the court concerned
NOTE: these rules also apply to principal,
domiciliary, or ancillary administrators &
receivers even in non-successive cases
Rules on Obligation and Contracts
FACTUAL SITUATION POINT OF CONTACT
Formal or Extrinsic Validity Lex loci celebrationis (Article 17 {1})

Exceptions

1. Alienation & encumbrance of
property
Lex situs (Article 16 [1])
1. Consular contracts Law of the RP (if made in RP consulates)
Capacity of Contracting Parties National law (Article 15) without prejudice
to the case of Insular Government v Frank
13 P 236, where the SC adhered to the
theory of lex loci celebrationis
Exception


Alienation & encumbrance of property Lex situs (Article 16 {1})
Intrinsic validity (including interpretation of the
instruments, and amt. of damages for breach)
Proper law of the contract – lex contractus
(in the broad sense), meaning the lex
voluntatis or lex loci intentionis
Other Theories are:
1. Lex loci celebrationis (defect: this makes possible the evasion of the national law)
2. Lex nationalii (defect: this may impede commercial transactions)
3. Lex loci solutionis (law of the place of performance) (defect: there may be several
places of performance
4. Prof Minor’s solution:
5. Perfection – lex loci celebrationis
6. Cause or consideration – lex loci considerations
7. Performance – lex loci solutionis (defect: this theory combines the defect of the
others)
Rules on Torts
FACTUAL SITUATION POINT OF CONTACT
Liability & damages for torts in general
NOTE: The locus delicti (place of
commission of torts) is faced by the problem
of characterization. In civil law countries,
the locus delicti is generally where the act
began; in common law countries, it is where
the act first became effective
Lex loci delicti (law of the place where the
delict was committed)
NOTE: liability for foreign torts may be
enforced in the RP if:
1. The tort is not penal in character
2. If the enforcement of the tortious
liability won’t contravene our public
policy
3. If our judicial machinery is adequate
for such enforcement
Rules on Crimes
FACTUAL SITUATION POINT OF CONTACT
Essential elements of a crime and penalties Generally where committed (locus regit
actum)
Theories as to what court has jurisdiction:
1. Territoriality theory – where the crime was committed
2. Nationality theory – country which the criminal is citizen or a subject
3. Real theory – any state whose penal code has been violated has jurisdiction, where
the crime was committed inside or outside its territory
4. Protective theory – any state whose national interests may be jeopardized has
jurisdiction so that it may protect itself
5. Cosmopolitan or universality theory – state where the criminal is found or which
has his custody has jurisdiction
6. Passive personality theory – the state of which the victim is a citizen or subject has
jurisdiction
NOTE: In the RP, we follow the territoriality theory in general; exception: Article 2, RPC,
stresses the protective theory
The locus delicti of certain crimes
1 Frustrated an consummated, homicide,
murder, infanticide & parricide
Where the victim was injured (not where
the aggressor wielded his weapon)
2 Attempted homicide, etc. 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
3 Bigamy Where the illegal marriage was performed
4 Theft & robbery Where the property was unlawfully taken
from the victim (not the place to which the
criminal went after the commission of the
crime)
5 Estafa or swindling thru false
representation
Where the object of the crime was received
(not where the false representations were
made)
6 Conspiracy to commit treason, rebellion,
or sedition
NOTE: Other conspiracies are NOT
Where the conspiracy was formed (not
where the overt act of treason, rebellion or
sedition was committed)
penalized by our laws
7 Libel Where published or circulated
8 Continuing crime Any place where the offense begins, 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 POINT OF CONTACT
Corporations
Powers and liabilities General rule: the law of the place of
incorporation
EXCEPTIONS:
1. For constitutional purposes – even
of the corporation was
incorporated in the RP, it is nor
deemed a Filipino corporation &
therefore can’t acquire land,
exploit our natural resources, 7
operate public utilities unless 60%
of capital if Filipino owned
2. 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);
kind of stocks, transfer of stocks to bind
the corporation, issuance, amount &
legality & dividends, powers & duties of
members, stockholders and officers
Law of the place of incorporation
Validity of corporate acts & contracts
(including ultra vires acts)
Law of the place of incorporation & law
of the place of performance (the act or
contract must be authorized by BOTH
laws)
Right to sue & amenability to court
processes & suits against it
Lex fori
Manner & effect of dissolution Law of the place of incorporation
provided that the public policy of the
forum is not militated against
Domicile 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. 15)
Receivers (appointment & powers) Principal receiver is appointed by the
courts of the state of incorporation;
ancillary receivers, by the courts of any
state where the corporation has assets
(authority is CO-EXTENSIVE) w/ the
authority of the appointing court
NOTE: Theories on the personal and/or governing law of corporations:
1. Law of the place of incorporation (this is generally the RP rule)
2. Law of the place or center of management (center for administration or siege social)
(center office principle)
3. Law of the place of exploitation (exploitation centre or siege d’ exploitation)
Partnerships
The existence or non-existence of legal
personality of the firm; the capacity to
contract; liability of the firm & the
partners to 3
rd
persons
The personal law of the partnership, i.e.,
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.)
Creation of branches in the RP; validity &
effect of the branches’ commercial
transaction; & the jurisdiction of the court
RP law (law of the place where branches
were created) (Article 15, Code of
Commerce)
Dissolution, winding up, & termination of
branches in the RP
RP law (Article 15, Code of Commerce)
Domicile 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. 15)
Receivers RP law insofar as the assets in the RP are
concerned can be exercised as such only in
the RP
Foundations (combination of capital
independent of individuals, usually not for
profit)
Personal law of the foundation (place of
principal center of administration)