Civil Law – Conflict of Laws

DEC 20

Posted by Magz
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

1
Nature Municipal in character International in character
Sovereign states and other
Dealt with by private entities possessing
individuals; governs international personality, e.g.,
individuals in their private UN; governs states in their
2 Persons transactions which involve a relationships amongst
involved foreign element themselves
Generally affected by public
interest; those in general are of
3 Transactions Private transactions between interest only to sovereign
involved private individuals 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,
Remedies reprisals, embargo, boycott, non-
4 and intercourse, pacific blockades,
Sanctions Resort to municipal tribunals 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 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
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 National law of the child (Article 15,

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

Presumptive death & survivorship Rule 131 §5 [jj], Rules of Court)
Rules on Marriage as a Contract

FACTUAL SITUATION 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
Between Filipinos marriages
Lex loci celebrationis EXCEPT if the
marriage is:
1. Highly immoral (like bigamous/
polygamous marriages)
2. Universally considered
incestuous (between brother-
sister, and ascendants-
Between Foreigners descendants)
Celebrated
Abroad Apply 1 (b) to uphold validity of
Mixed marriage
National law (Article 21, FC)
PROVIDED the marriage is not highly
immoral or universally considered
Between Foreigners incestuous)
Celebrated
in RP National law of Filipino (otherwise
Mixed public policy may be militated against)
 Marriage by proxy (NOTE: a marriage
by proxy is considered celebrated Lex loci celebrationis (with prejudice
where the proxy appears to the foregoing rules)
Rules on Marriage as a Status

FACTUAL SITUATION POINT OF CONTACT

National of husband(Note: Effect of

1 Personal rights & obligations between
husband & wife
2 MATRIMONIAL PROPERTY
Property relations bet husband & wife
Rules on Property
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)
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
REGIME)

FACTUAL SITUATION POINT OF CONTACT

Real property Lex rei sitae (Article 16, CC)

National law of decedent (Article 16
Successional rights par. 2, CC)
National law of decedent (Article.
Capacity to succeed 1039)
The law intended will be the proper
Contracts involving real property law of the contract (lex loci
which do not deal with the title thereto voluntantis or lex loci intentionis)
The principal contract (usually loan) is
governed by the proper law oft the
contract – (lex loci voluntatis or lex
Contracts where the real property is loci intentionis)NOTE: the mortgage
Exceptions given as security itself is governed by lex rei

Tangible personal property (choses in possession)
1
In General
Exceptions: same as those for real
property
Means of Transportation
Vessels
2 Law of the depot (storage place for
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
3 intentionis– because here there is a
Disposition or alienage of the goods
FACTUAL SITUATION
INTangIBLE PERSONAL PROPERTY
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.
Lex rei sitae (Article. 16, CC)
EXCEPTION: same as those for real
property EXCEPT that in the example
concerning mortgage, the same must
be changed to pledge of personal
property)
Law of the flag (or in some cases,
place of registry)
supplies or resting place)
Law of the destination (Article. 1753,
CC)
Locus regit actum (where seized) –
because said place is their
temporary situs
Lex loci volutantis or lex loci
contract
POINT OF CONTACT
(CHOSES IN ACTION)
1 Recovery of debts or involuntary
assignment of debts (garnishment)
2 Lex loci voluntatis or lex loci
Voluntary assignment of debts
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
4 these assets can be held liable for the
Administration of debts
5 Negotiability or non-negotiability of an
instrument
6 Validity of transfer, delivery or
negotiation of the instrument
7 Effect on a corporation of the sale of
corporate shares
8 Effect between the parties of the sale
of corporate shares
9 Taxation on the dividends of corporate
shares
Where debtor may be effectively
served with summons (usually the
domicile)
intentionis(proper law of the contract)
Domicile of creditor
Lex situs of assets of the debtor (for
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
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)
Law of the place of incorporation
10 Taxation on the income from the sale Law of the place where the sale was
of corporate shares consummated

11
Franchises Law of the place that granted them

12 Goodwill of the business & taxation Law of the place where the business is
thereto carried on
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
13 Patents, copyrights, trademarks, trade are granted reciprocal concessions in
names the state of the foreigners
Wills, Succession & Administration of Conflict Rules

FACTUAL SITUATION POINT OF CONTACT

Extrinsic Validity of Wills

Lex nationalii OR lex domicilii OR RP
1 law (Article 816, CC), OR lex loci
Made by an alien abroad celebrationis(Article 17(1))

2 Lex nationalii OR lex loci

Made by a Filipino abroad celebrationis(Article 815)

3 Lex nationalii OR lex loci

Made by an alien in the RP celebrationis(Article 817)

FACTUAL SITUATION POINT OF CONTACT

Extrinsic Validity of Joint Wills (made in

the same instrument)

1 Lex nationalii (void, even if valid

Made by Filipinos abroad where made) (Article 819)
 Valid if valid according to lex
2 domicilii or lex loci
Made by aliens abroad celebrationis (Article 819)
Lex loci celebrationis therefore void
even if apparently allowed by Article
817 because the prohibition on joint
3 wills is a clear expression of public
Made by aliens in the RP policy
Lex nationalii of the deceased –
regardless of the LOCATION &
NATURE of the property (Article 16
Intrinsic Validity of Wills (2))
Lex nationalii of the deceased – not of
Capacity to Succeed the heir (Article 1039)
Revocation of Wills

1 Lex loci actus (of the revocation)

If done in the RP
If done OUTSIDE the RP
1. By a NON-DOMICILIARY
(Article. 829)
Lex loci celebrationis (of the making of
the will, NOT revocation), OR lex
domicilii(Article 829)

2 Lex domicilii (RP law) OR lex loci

1. By a DOMICILIARY of the RP actus (of the revocation) (Article 17)
Probate of Wills Made Abroad
Lex fori of the RP applies as to the
procedural aspects, i.e., the will must
1 be fully probated here & due execution
If not yet probated abroad must be shown
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
2 ask for the enforcement here of the
If already probated abroad foreign judgment on the probate abroad
Executors and Administrators
 Place where domiciled at death or
1 incase of non-domiciliary, where assets
Where appointed are found
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
2 administrators & receivers even in non-
Powers 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])
Law of the RP (if made in RP
1. Consular contracts consulates)
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
Capacity of Contracting Parties celebrationis
Exception
Alienation & encumbrance of property Lex situs (Article 16 {1})
Proper law of the contract – lex
Intrinsic validity (including interpretation of contractus(in the broad sense),
the instruments, and amt. of damages for meaning the lex voluntatis or lex loci
breach) 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

Lex loci delicti (law of the place where

Liability & damages for torts in
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
Rules on Crimes
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

FACTUAL SITUATION POINT OF CONTACT

Generally where committed (locus regit

Essential elements of a crime and penalties 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

Where the victim was injured (not
1 Frustrated an consummated, homicide, where the aggressor wielded his
murder, infanticide & parricide weapon)
 Where the intended victim was (not
where the aggressor was situated) – so
long as the weapon or the bullet either
2 touched him or fell inside the territory
Attempted homicide, etc. where he was

3 Where the illegal marriage was

Bigamy
4 which the criminal went after the
Theft & robbery
5 Estafa or swindling thru false
representation
Conspiracy to commit treason,
rebellion, or seditionNOTE: Other
6 conspiracies are NOT penalized by our
laws
performed
Where the property was unlawfully
taken from the victim (not the place to
commission of the crime)
Where the object of the crime was
received (not where the false
representations were made)
Where the conspiracy was formed (not
where the overt act of treason, rebellion
or sedition was committed)

7
Libel Where published or circulated

8 Any place where the offense begins,

Continuing crime exists or continues

9 Any place where any of the essential

Complex crime elements of the crime took place
Rules on Juridical Persons

FACTUAL SITUATION POINT OF CONTACT

Corporations
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 &
Powers and liabilities therefore can’t acquire land,

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
Validity of corporate acts & contracts
(including ultra vires acts)
Right to sue & amenability to court
processes & suits against it
Manner & effect of dissolution
Domicile
Receivers (appointment & powers)
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
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)
Law of the place of incorporation
Law of the place of incorporation &
law of the place of performance (the
act or contract must be authorized by
BOTH laws)
Lex fori
Law of the place of incorporation
provided that the public policy of the
forum is not militated against
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)
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
 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
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
Receivers
Foundations (combination of capital
independent of individuals, usually not for
profit)
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.)
RP law (law of the place where
branches were created) (Article 15,
Code of Commerce)
RP law (Article 15, Code of
Commerce)
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)
RP law insofar as the assets in the RP
are concerned can be exercised as such
only in the RP
Personal law of the foundation (place
of principal center of administration)