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Ateneo Conflict-of-Laws PDF
Ateneo Conflict-of-Laws PDF
Civil Law
SUMMER REVIEWER
CONFLICT OF LAWS
Transactions
involved
Private
transactions
between
private
individuals
Remedies
and
Sanctions
Resort to
municipal
tribunals
Sources
Generally
derived from
the internal
law of the
state; except
any conflict of
law question
governed by
a treaty
CONFLICT OF
LAW OF NATIONS
LAW
Nature
Persons
involved
Municipal in
International in
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Dealt with by
Sovereign States
private
and other entities
individuals;
possessing
governs
international
individuals in
personality, e.g.,
their private
UN; governs
transactions
States in their
which involve relationships
a foreign
amongst
element
themselves
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
&
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.
Custom,
Treaty
and
General
Principles of law,
recognized
by
civilized
nations
and
juridical
decisions
and
teachings of the
most
highly
qualified publicists
Indirect
Natural Moral Law
Work of Writers
Head: Joy Ponsaran, Eleanor Mateo; Understudy: Joy Tajan, John Paul Lim;
Subject Head: Laarni Pichay;
DEFINITION OF TERMS:
1. Lex Domicilii- law of the domicile; in conflicts,
the law of one's domicile applied in the choice of
law questions.
2. Lex Fori - law of the forum; that is, the positive
law of the State, country or jurisdiction of whose
judicial system the suit is brought or remedy is
sought. 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)
3. Lex Loci - law of the place
4. 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
5. 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
6. Lex Situs - law of the place where property is
situated; the general rule is that real property is
governed by the law of the State where it is
situated
7. Lex Loci Actus - law of the place where the act
was done
8. Lex Loci Celebrationis - law of the place where
the contract is made
9. Lex Loci SolutionisQuickTime
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performance of a contract is to be made
DISMISS THE
JURISDICTION
CASE
FOR
LACK
OF
1.
2.
3.
EXAMPLES:
i.
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
ii.
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
iii.
Article 819 of the Civil Code - prohibits
Filipinos from making joint wills even if valid
in foreign country
b.
LONG-ARM STATUTES
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which jurisdiction will be asserted over a
defendant outside of state territory.
AND
APPLY
REQUISITES
FOR
RECOGNITION
AND
ENFORCEMENT OF FOREIGN JUDGMENTS
1. Foreign judgment was rendered by a judicial or a
quasi-judicial tribunal which had competent
jurisdiction over the parties and the case in the
proper judicial proceedings in which the
defendant shall have be given reasonable
notice and the opportunity to be heard.
2. It must be a judgment on civil and commercial
matters.
3. The judgment must be valid according to the
court that delivered it;
4. Judgment must be final and executory to
constitute res judicata in another action;
ELEMENTS: The judgment must be
a. Final
b. Rendered by a competent court
c. On the Merits
d. Involve the same parties, subject matter and
cause of action.
5. Foreign judgment must not be contrary to the
public policy or the good morals of the State
Page 254 of 297
STATUTE OF FRAUDS
1.
2.
STATUTE OF LIMITATIONS
DISTINCTION BETWEEN
ENFORCEMENT
RECOGNITION
AND
STAGES IN CHARACTERIZATION:
1.
2.
3.
4.
ENFORCEMENT OF
FOREIGN JUDGMENT
Plaintiff wants courts to
positively carry out and
make effective in the
State a foreign
judgment
Virtually implies a direct
act of sovereignty
Necessitates a
separate action or
proceeding brought
precisely to make the
foreign judgment
effective
May exist without
Necessarily carries with
enforcement
it recognition
For BOTH recognition and enforcement, proof
of the foreign judgment has to be presented.
Moreover, the requisites or conditions for the
recognition or enforcement of foreign judgments
must be present.
to the newly created liability specifically to
warrant a qualification of the right
2. Procedural If it operates to bar the legal
remedy without impairing the substantive right
involved.
DEPECAGE
1. MULTIPLE CITIZENSHIP
DOMICILE
1.
2.
3.
CHAPTER 7: RENVOI
POINT OF CONTACT
(1) national law of the
child
(Article 15, Civil Code)
(2) national law (Art. 15)
(3) national law (Art. 15)
(4) national law (Art. 15)
Celebrated
abroad
CHARACTERISTICS OF STATUS
1. Status is conferred principally by the state not by
the individual.
2. Status is a matter or public or social interest.
3. Status being a concept of social order, cannot
easily be terminated at the mere will or desire of
the parties concerned.
4. Status is generally supposed to have a universal
character: when a certain status is created by law
of one country, it is GENERALLY judicially
recognized all over the world.
FACTUAL
SITUATION
Between
Filipinos
Between
Foreigners
Mixed
Celebrated
in the
Phils.
Between
Foreigners
Mixed
Marriage
by Proxy
(NOTE: a
POINT OF CONTACT
G.R.Lex loci
celebrationis
Exceptions:
(1) Arts. 26, 35 (1),
(4), (5) and (6), 36,
37 and 38 of the
Family Code
(bigamous,
polygamous and
incestuous
marriages)
2) consular marriages
G.R. Lex loci
celebrationis
Exceptions :
(1) highly immoral
(like bigamous
and polygamous
marriages)
(2) UNIVERSALLY
considered
INCESTUOUS,
i.e., between
brothers-sisters
and between
ascendantsdescendants
Apply rule on
marriages between
foreigners to uphold
the validity of the
marriage
National law (Art. 21,
Family Code) provided
the marriage is not
highly immoral or
universally considered
incestuous
National law of the
Filipino (otherwise
public policy may be
militated against)
Lex loci celebrationis
(with prejudice with
the foregoing rules
Page 258 of 297
LEGAL SEPARATION
There is no obstacle to aliens in securing relative
divorce in the Philippines, provided:
1. Their national law is willing to recognize
Philippine jurisdiction.
2. Separation is agreeable to the internal law of the
national state of the parties.
FACTUAL
SITUATION
1) Paternity and
Filiation
(including
Parental Authority
and Reciprocal
Support)
legitimacy,
legitimation,
recognition,
presumptions of
legitimacy, rights
and obligations of
parents and
children, including
parental authority,
and reciprocal
support.
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1. Valid divorce obtained abroad between
foreigners whose national laws allow divorce.
2. Where a marriage between a Filipino citizen and
a foreigner is validly celebrated and a divorce is
thereafter validly obtained abroad by the alien
spouse capacitating him or her to remarry, the
Filipino spouse shall have capacity to remarry
under Philippine law.
Hague Convention provides that the granting of
2. Adoption
creation of the
status of adoption;
rights and
obligations of
adopter and
adopted
3. Guardianship
a) over the person
1) appointing
POINT OF CONTACT
1) if legitimate national law
of the father (Art 15, Civil
Code)
2) if illegitimate national law
of the mother unless
recognized by the father in
which case, national law of
the father (Art 15, Civil
Code)
3) determination of whether
legitimate or illegitimate
(national law of the father,
as a rule) (Art. 15, Civil
Code)
Doctrine of Immutability of
Status change of
parents nationality does
not affect the status of the
child
2) in general, national law of
the adopter
NOTE: In the Philippines.
adoption by a Filipino does
not confer Filipino citizenship
on an adopted alien child.
b) over the
property
1) appointing
court
2) powers of
guardian
ward
2) coextensive with those of
the appointing court (law of
the appointing state)
Personal Care
Parental Authority
Provide for Education
Reciprocal Support
BETWEEN
2.
RULES GOVERNING
TRANSFERS:
DIFFERENT
Vessels
Other means
Things in transitu
(these things have a
changing status
because they move)
Loss, destruction,
deterioration
Validity & effect of the
seizure of the goods
Means of
Transportation
KIND
OF
Disposition or alienage
of the goods
Negotiability or
non-negotiability
of an instrument
Validity of
transfer, delivery
or negotiation of
the instrument
Effect on a
corporation of the
Domicile of creditor
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, Swedish law
determines its
negotiability)
In general, situs of the
instrument at the time of
transfer, delivery or
negotiation
Law of the place
incorporation
Page 262 of 297
Taxation on the
dividends of
corporate shares
Taxation on the
income from the
sale of corporate
shares
Franchises
Goodwill of the
business &
taxation thereto
Patents,
copyrights,
trademarks, trade
names
GOVERNING LAWS
1. If the Testator is a FILIPINO
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b. Executed in foreign country
i.
Lex nationalii
ii.
Lex loci celebrationis (Article 817)
2. If the Testator is an ALIEN
a. Executed in the Philippines
i. Lex nationalii
ii. Lex loci celebrationis (Article 815)
b. Executed abroad
i. Lex nationalii
2.
ISSUES
IN
CONFLICTS
CHARACTERIZATION OF
WRONG (locus delicti)
THE
PLACE
OF
SPECIAL RULES
1. If the tort is committed aboard a public vessel,
whether on the high seas or in foreign territorial
waters, the country to which the vessel belongs is
the locus delicti; the law of the flag is thus the lex
loci delicti commissi.
THEORIES AS
JURISDICTION
TO
WHAT
COURT
HAS
false
representation
Conspiracy to
commit treason,
rebellion,
or
sedition
NOTE:
Other
conspiracies
are
NOT
penalized
by
our laws
Libel
Continuing
crime
Complex crime
FACTUAL
SITUATION
Powers and
liabilities
CORPORATIONS
POINTS OF CONTACT
Formation of the
corporation
(requisites); kind
of stocks, transfer
of stocks to bind
the corporation,
issuance, amount
Domicile
Receivers
(appointment &
powers)
Creation of branches
in the RP; validity &
effect of the branches
commercial
transaction; & the
jurisdiction of the
court
Dissolution, winding
up, & termination of
branches in the RP
Domicile
MULTI-NATIONAL CORPORATIONS
PARTNERSHIPS
FACTUAL SITUATION
POINTS OF CONTACT
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existence of legal
the partnership, i.e.,
personality of the firm;
the law of the place
the capacity to
where it was created
contract; liability of
(Article 15 of the Code
the firm & the partners
of Commerce)
to 3rd persons
(Subject to the
exceptions given
above as in the case
of corps.)
Page 269 of 297