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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

CONFLICT OF LAW

LAW OF NATIONS

Nature

Persons
involved

Transactions
involved

Municipal in character

International in character

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

Private transactions between


private individuals

Generally affected by public


interest; those in general are of
interest only to sovereign
states
May be peaceful or forcible
Peaceful: includes diplomatic
negotiation, tender & exercise of
good offices, mediation, inquiry &

Remedies
and
Sanctions

SOURCES:
Direct:
1. Constitutions

Resort to municipal tribunals

conciliation, arbitration, judicial


settlement by ICJ, reference to
regional agencies
Forcible: includes severance of
diplomatic relations, retorsions,
reprisals, embargo, boycott, nonintercourse, pacific blockades,
collective measures under the UN
Charter, and war.

2. Codifications
1.
2.
3.
4.

Special Laws
Treaties and Conventions
Judicial Decisions
International Customs

Indirect:
1. Natural moral law
1. Work of writers

TERMS:
Lex Domicilii law of the domicile; in conflicts, the law of ones 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 CONVENIENS 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

NOTICE AND PROOF OF FOREIGN 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
giveprotection 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

Beginning of personality of natural


person

National law of the child (Article 15,


CC)

Ways & effects of emancipation

Same

Age of majority

Same

Use of names and surnames

Same

Use of titles of nobility

Same

Absence

Same

Presumptive death & survivorship

Lex fori (Article 43, 390, 391, CC;


Rule 131 5 [jj], Rules of Court)

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Rules on Marriage as a Contract
FACTUAL SITUATION

POINT OF CONTACT

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 brothersister, and ascendantsdescendants)

Mixed

Apply 1 (b) to uphold validity of


marriage

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)

Celebrated
Abroad

Celebrated
in RP

Rules on Marriage as a Status


FACTUAL SITUATION

POINT OF CONTACT

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)

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)

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Rules on Property
FACTUAL SITUATION

Real property

Exceptions

POINT OF CONTACT

Lex rei sitae (Article 16, CC)

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 orlex 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)

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)

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
temporarysitus

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)

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

Administration of debts

Lex situs of assets of the debtor (for


these assets can be held liable for the
debts)

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)

Validity of transfer, delivery or


negotiation of the instrument

In general, situs of the instrument at


the time of transfer, delivery or
negotiation

Effect on a corporation of the sale of


corporate shares

Law of the place incorporation

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)

Taxation on the dividends of corporate


shares

Law of the place of incorporation

Taxation on the income from the sale


of corporate shares

Law of the place where the sale was


consummated

Franchises

Law of the place that granted them

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Goodwill of the business & taxation


thereto

Law of the place where the business is


carried on

Patents, copyrights, trademarks, trade


names

In the absence of a treaty, they are


protected only by the state that granted
themNOTE: 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

Made by an alien abroad

Lex nationalii OR lex domicilii OR RP


law (Article 816, CC), OR lex loci
celebrationis(Article 17(1))

Made by a Filipino abroad

Lex nationalii OR lex loci


celebrationis(Article 815)

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)

Made by Filipinos abroad

Lex nationalii (void, even if valid


where made) (Article 819)

Made by aliens abroad

Valid if valid according to lex


domicilii orlex loci
celebrationis (Article 819)

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)

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

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

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

Where appointed

Place where domiciled at death or


incase of non-domiciliary, where assets
are found

Powers

Co-extensive with the qualifying of the


appointing court powers may only be
exercised within the territorial
jurisdiction of the court
concernedNOTE: these rules also apply

to principal, domiciliary, 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. 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
Intrinsic validity (including interpretation of
the instruments, and amt. of damages for
breach)

Lex situs (Article 16 {1})


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 Minors 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

Liability & damages for torts in

POINT OF CONTACT

Lex loci delicti (law of the place where

generalNOTE: 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

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 wont contravene our
public policy
3. If our judicial machinery is
adequate for such enforcement

Rules on Crimes
FACTUAL SITUATION

Essential elements of a crime and penalties

POINT OF CONTACT

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)

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

Bigamy

Where the illegal marriage was


performed

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)

Estafa or swindling thru false


representation

Where the object of the crime was


received (not where the false
representations were made)

Conspiracy to commit treason,


rebellion, or seditionNOTE: 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)

Libel

Where published or circulated

Continuing crime

Any place where the offense begins,


exists or continues

Complex crime

Any place where any of the essential


elements of the crime took place

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Rules on Juridical Persons
FACTUAL SITUATION

POINT OF CONTACT

Corporations

Powers and liabilities

General rule: the law of the place of


incorporationEXCEPTIONS:
1. For constitutional purposes
even of the corporation was
incorporated in the RP, it is nor
deemed a Filipino corporation &
therefore cant 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 3rd 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)

Reference:
Civil Law (Conflict of Laws) Memory Aid
Ateneo Central Bar Operations 2001
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