Professional Documents
Culture Documents
Conflicts of Laws
Conflicts of Laws
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).
CONFLICT OF LAW
LAW OF NATIONS
1
Nature
Municipal in character
International in character
Persons
involved
Transactions
involved
Remedies
and Sanctions
SOURCES:
Direct:
1. Constitutions
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
(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.
Point of Contact
1
Beginning of personality of natural person
Same
Age of majority
Same
Same
Same
Absence
Same
7
Rules on Marriage as a Contract
FACTUAL SITUATION
Celebrat
ed
Abroad
Between Filipinos
Between Foreigners
POINT OF CONTACT
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
Lex loci celebrationis EXCEPT if the
marriage is:
1.
Highly immoral (like
bigamous/ polygamous
marriages)
2.
Universally considered
incestuous (between brothersister, and ascendants-
descendants)
Mixed
Between Foreigners
Mixed
Celebrat
ed in RP
POINT OF CONTACT
2
Rules on Property
FACTUAL SITUATION
Real property
Exception
s
POINT OF CONTACT
Lex rei sitae (Article 16, CC)
Successional rights
Capacity to succeed
1
In General
Means of Transportation
Vessels
Other means
2
Things in transitu (these things have a
changing status because they move)
Loss, destruction, deterioration
FACTUAL SITUATION
INTangIBLE PERSONAL PROPERTY (CHOSES IN
ACTION)
POINT OF CONTACT
2
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
Negotiability or non-negotiability of an
instrument
Franchises
1
0
1
2
1
3
POINT OF CONTACT
FACTUAL SITUATION
POINT OF CONTACT
1
Made by Filipinos abroad
3
Made by aliens in the RP
Capacity to Succeed
Revocation of Wills
1
If done in the RP
1.
By a NON-DOMICILIARY
1.
By a DOMICILIARY of the RP
2
Probate of Wills Made Abroad
2
Executors and Administrators
Where appointed
Powers
2
Rules on Obligation and Contracts
FACTUAL SITUATION
Formal or Extrinsic Validity
POINT OF CONTACT
Lex loci celebrationis (Article 17 {1})
Exceptions
1.
1.
Consular contracts
Exception
Alienation & encumbrance of property
Intrinsic validity (including interpretation of
the instruments, and amt. of damages for
breach)
Rules on Torts
FACTUAL SITUATION
POINT OF CONTACT
Rules on Crimes
FACTUAL SITUATION
Essential elements of a crime and penalties
POINT OF CONTACT
Generally where committed (locus regit
actum)
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
Bigamy
7
Libel
Continuing crime
Complex crime
POINT OF CONTACT
Corporations
Lex fori
Domicile
Domicile
Receivers