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Civil Law (Conflict of Laws)

Memory Aid
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

Dealt with by private Sovereign states and other


individuals; governs entities possessing
individuals in their international personality,
private transactions e.g., UN; governs states in
Persons which involve a their relationships amongst
2 involved foreign element themselves

Generally affected by public


Private transactions interest; those in general are
Transactions between private of interest only to sovereign
3 involved 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, reprisals,
embargo, boycott, non-
intercourse, pacific
Remedies and Resort to municipal blockades, collective measures
4 Sanctions tribunals 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 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 National law of the child (Article 15,


1 natural person CC)

Ways & effects of


2 emancipation Same

3 Age of majority Same

4 Use of names and surnames Same

5 Use of titles of nobility Same

6 Absence Same

Presumptive death & Lex fori (Article 43, 390, 391, CC; Rule
7 survivorship 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
Between Foreigners ascendants-descendants)

Celebrated Apply 1 (b) to uphold validity of


Abroad Mixed marriage
National law (Article 21, FC) PROVIDED
the marriage is not highly immoral or
Between Foreigners universally considered incestuous)

Celebrated National law of Filipino (otherwise


in RP Mixed public policy may be militated against)

Marriage by proxy
(NOTE: a marriage
by proxy is
considered
celebrated where Lex loci celebrationis (with prejudice
the proxy appears to the foregoing rules)
Rules on Marriage as a Status
FACTUAL SITUATION POINT OF CONTACT

National of husband
(Note: Effect of subsequent change of nationality:
1. If both will have a new nationality – the new
one
Personal rights & 2. If only one will change – the last common
obligations nationality
between husband & 3. If no common nationality – nationality of
1 wife husband at the time of wedding)

National law of husband without prejudice to what


the CC provides concerning REAL property located in
Property the RP (Article 80) (NOTE: Change of nationality
relations bet has NO EFFECT. This is the DOCTRINE OF IMMUTABILITY
2 husband & wife IN THE MATRIMONIAL PROPERTY REGIME)
Rules on Property
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)

Contracts involving
real property which do The law intended will be the proper
not deal with the title law of the contract (lex loci
thereto voluntantis orlex loci intentionis)

The principal contract (usually


loan) is governed by the proper law
oft the contract – (lex loci
Contracts where the voluntatis or lex loci intentionis)
real property is given NOTE: the mortgage itself is
Exceptions as security 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)

EXCEPTION: same as those for real


property EXCEPT that in the example
concerning mortgage, the same must
Exceptions: same as be changed to pledge of personal
those for real property property)

Means of Transportation

Law of the flag (or in some cases,


Vessels place of registry)

Law of the depot (storage place for


2 Other means supplies or resting place)

Things
in transitu (these
things have a changing
status because they
move)

Loss, destruction, Law of the destination (Article.


deterioration 1753, CC)

Validity & effect of Locus regit actum (where seized) –


the seizure of the because said place is their
goods temporarysitus

Lex loci volutantis or lex loci


Disposition or alienage intentionis– because here there is a
3 of the goods contract

FACTUAL SITUATION POINT OF CONTACT

INTangIBLE PERSONAL PROPERTY


(CHOSES IN ACTION)

Recovery of debts or
involuntary assignment Where debtor may be effectively served with
1 of debts (garnishment) summons (usually the domicile)

2 Voluntary assignment of Lex loci voluntatis or lex loci


debts 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

Lex situs of assets of the debtor (for these


4 Administration of debts assets can be held liable for the debts)

The right embodied in the instrument (for


Negotiability or non- example, in the case of a Swedish bill of
negotiability of an exchange, Swedish law determines its
5 instrument negotiability)

Validity of transfer,
delivery or negotiation In general, situs of the instrument at the
6 of the instrument time of transfer, delivery or negotiation

Effect on a corporation
of the sale of
7 corporate shares Law of the place incorporation

Lex loci voluntatis or lex loci intentionis


Effect between the (proper law of the contract) – for this is
parties of the sale of really a contract; usually this is the place
8 corporate shares where the certificate is delivered)

Taxation on the
dividends of corporate
9 shares Law of the place of incorporation

Taxation on the income


from the sale of Law of the place where the sale was
10 corporate shares consummated

11 Franchises Law of the place that granted them

Goodwill of the
business & taxation Law of the place where the business is
12 thereto carried on

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
Patents, copyrights, Filipinos are granted reciprocal concessions
13 trademarks, trade names in the state of the foreigners
Wills, Succession & Administration of Conflict Rules
FACTUAL SITUATION POINT OF CONTACT

Extrinsic Validity
of Wills

Made by an Lex nationalii OR lex domicilii OR RP law (Article


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

Made by a
2 Filipino abroad Lex nationalii OR lex loci celebrationis(Article 815)

Made by an
3 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 Lex nationalii (void, even if valid where made)


1 abroad (Article 819)

Made by aliens Valid if valid according to lex domicilii orlex


2 abroad loci celebrationis (Article 819)

Lex loci celebrationis therefore void even if


apparently allowed by Article 817 because the
Made by aliens in prohibition on joint wills is a clear expression
3 the RP of public policy

Intrinsic Validity of Lex nationalii of the deceased – regardless of the


Wills LOCATION & NATURE of the property (Article 16 (2))

Lex nationalii of the deceased – not of the heir


Capacity to Succeed (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- Lex loci celebrationis (of the making of the will,


DOMICILIARY NOT revocation), OR lex domicilii(Article 829)

1. By a
DOMICILIARY of Lex domicilii (RP law) OR lex loci actus (of the
2 the RP revocation) (Article 17)

Probate of Wills Made


Abroad
Lex fori of the RP applies as to the procedural
If not yet aspects, i.e., the will must be fully probated
1 probated abroad here & due execution 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
If already is enough to ask for the enforcement here of the
2 probated abroad foreign judgment on the probate abroad

Executors and
Administrators

Place where domiciled at death or incase of non-


1 Where appointed domiciliary, where assets are found

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 &
2 Powers 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)

National law (Article 15) without


prejudice to the case of Insular
Government v Frank 13 P 236, where the SC
Capacity of Contracting adhered to the theory of lex loci
Parties celebrationis

Exception

Alienation & encumbrance of


property Lex situs (Article 16 {1})

Intrinsic validity (including


interpretation of the Proper law of the contract – lex
instruments, and amt. of contractus(in the broad sense), meaning
damages for breach) 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

Lex loci delicti (law of the place


where the delict was committed)
Liability & damages for torts in
general NOTE: liability for foreign torts
may be enforced in the RP if:
NOTE: The locus delicti (place of
commission of torts) is faced by the 1. The tort is not penal in
problem of characterization. In character
civil law countries, the locus 2. If the enforcement of the
delicti is generally where the act tortious liability won’t
began; in common law countries, it contravene our public policy
is where the act first became 3. If our judicial machinery is
effective adequate for such enforcement
Rules on Crimes
FACTUAL SITUATION POINT OF CONTACT

Essential elements of a crime and Generally where committed (locus


penalties 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

Frustrated an consummated, Where the victim was injured (not


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

Where the illegal marriage was


3 Bigamy performed

Where the property was unlawfully


taken from the victim (not the
place to which the criminal went
4 Theft & robbery after the commission of the crime)

Where the object of the crime was


Estafa or swindling thru false received (not where the false
5 representation representations were made)

Conspiracy to commit treason, Where the conspiracy was formed


rebellion, or sedition (not where the overt act of
NOTE: Other conspiracies are NOT treason, rebellion or sedition was
6 penalized by our laws committed)

7 Libel Where published or circulated

Any place where the offense


8 Continuing crime begins, exists or continues

Any place where any of the


essential elements of the crime
9 Complex crime took place
Rules on Juridical Persons
FACTUAL SITUATION POINT OF CONTACT

Corporations

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
Powers and liabilities 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

Law of the place of incorporation


Validity of corporate acts & & law of the place of performance
contracts (including ultra (the act or contract must be
vires acts) authorized by BOTH laws)

Right to sue & amenability to


court processes & suits against
it Lex fori

Law of the place of incorporation


provided that the public policy
of the forum is not militated
Manner & effect of dissolution 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
Domicile 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
Receivers (appointment & powers) 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 The personal law of the


legal personality of the firm; partnership, i.e., the law of the
the capacity to contract; place where it was created
liability of the firm & the (Article 15 of the Code of
partners to 3rd persons Commerce) (Subject to the
exceptions given above as in the
case of corps.)

Creation of branches in the RP;


validity & effect of the RP law (law of the place where
branches’ commercial transaction; branches were created) (Article
& the jurisdiction of the court 15, Code of Commerce)

Dissolution, winding up, & RP law (Article 15, Code of


termination of branches in the RP 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
Domicile functions (Article. 15)

RP law insofar as the assets in


the RP are concerned can be
Receivers exercised as such only in the RP

Foundations (combination of capital Personal law of the foundation


independent of individuals, usually (place of principal center of
not for profit) administration)

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