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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

1
Nature Municipal in character International in character

Sovereign states and other


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

Generally affected by public


3 Transactions Private transactions between interest; those in general are of
involved private individuals 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
Remedies
4 and
measures under the UN
Sanctions Resort to municipal tribunals 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

2. 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 person National law of the child (Article 15, 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; Rule 131


Presumptive death & survivorship §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) &
Between Filipinos consular marriages

Lex loci celebrationis EXCEPT if the


marriage is:
1. Highly immoral (like bigamous/
polygamous marriages)
2. Universally considered incestuous
(between brother-sister, and
Celebrated
Between Foreigners ascendants-descendants)
Abroad
Mixed Apply 1 (b) to uphold validity of marriage

National law (Article 21, FC) PROVIDED


the marriage is not highly immoral or
Celebrated Between Foreigners universally considered incestuous)

in RP National law of Filipino (otherwise public


Mixed policy may be militated against)

Marriage by proxy (NOTE: a marriage by


proxy is considered celebrated where the Lex loci celebrationis (with prejudice to the
proxy appears 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
2. If only one will change – the last
common nationality
3. If no common nationality –
1 Personal rights & obligations between nationality of husband at the time of
husband & wife 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
2 IMMUTABILITY IN THE MATRIMONIAL
Property relations bet husband & wife PROPERTY REGIME)

Rules on Property
FACTUAL SITUATION POINT OF CONTACT
Real property Lex rei sitae (Article 16, CC)

National law of decedent (Article 16 par.


Successional rights 2, CC)

Capacity to succeed National law of decedent (Article. 1039)

The law intended will be the proper law of


Contracts involving real property which do the contract (lex loci voluntantis or lex loci
not deal with the title thereto intentionis)

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
Contracts where the real property is given consideration), although by itself, the
Exceptions as security 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
Exceptions: same as those for real concerning mortgage, the same must be
property changed to pledge of personal property)

Means of Transportation

Law of the flag (or in some cases, place of


Vessels registry)

2 Law of the depot (storage place for


Other means 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)

Locus regit actum (where seized) –


Validity & effect of the seizure of the because said place is their
goods temporary situs

3 Lex loci volutantis or lex loci intentionis –


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

FACTUAL SITUATION POINT OF CONTACT


INTangIBLE PERSONAL PROPERTY (CHOSES
IN ACTION)

1 Recovery of debts or involuntary Where debtor may be effectively served


assignment of debts (garnishment) with summons (usually the domicile)

2 Lex loci voluntatis or lex loci


Voluntary assignment of 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
4 Lex situs of assets of the debtor (for these
Administration of debts assets can be held liable for the debts)

The right embodied in the instrument (for


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

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


of the instrument time of transfer, delivery or negotiation

7 Effect on a corporation of the sale of


corporate shares Law of the place incorporation

Lex loci voluntatis or lex loci intentionis


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

9 Taxation on the dividends of corporate


shares Law of the place of incorporation

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

11
Franchises Law of the place that granted them

12 Law of the place where the business is


Goodwill of the business & taxation 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 are
13 Patents, copyrights, trademarks, trade granted reciprocal concessions in the state
names 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 law
1 (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 where


Made by Filipinos abroad made) (Article 819)

Valid if valid according to lex


2 domicilii or lex loci celebrationis (Article
Made by aliens abroad 819)

Lex loci celebrationis therefore void even if


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

Lex nationalii of the deceased – regardless


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

Lex nationalii of the deceased – not of the


Capacity to Succeed heir (Article 1039)

Revocation of Wills

1 Lex loci actus (of the revocation) (Article.


If done in the RP 829)

If done OUTSIDE the RP

Lex loci celebrationis (of the making of the


will, NOT revocation), OR lex
1. By a NON-DOMICILIARY domicilii (Article 829)
2
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

Lex fori of the RP applies as to the


procedural aspects, i.e., the will must be
1 fully probated here & due execution must
If not yet probated abroad 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 ask for the
2 enforcement here of the foreign judgment
If already probated abroad on the probate abroad

Executors and Administrators

1 Place where domiciled at death or incase


Where appointed of non-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 concernedNOTE: these rules
also apply to principal, domiciliary, or
2 ancillary administrators & receivers even in
Powers 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 adhered to the
Capacity of Contracting Parties theory of lex loci 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 damages for breach) 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 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)NOTE: liability for
foreign torts may be enforced in the RP if:
1. The tort is not penal in character
Liability & damages for torts in
generalNOTE: The locus delicti (place of 2. If the enforcement of the tortious
commission of torts) is faced by the problem liability won’t contravene our public
of characterization. In civil law countries, policy
the locus delicti is generally where the act
began; in common law countries, it is where 3. If our judicial machinery is adequate
the act first became effective for such enforcement

Rules on Crimes
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
1 Frustrated an consummated, homicide, Where the victim was injured (not where
murder, infanticide & parricide the aggressor wielded his weapon)

Where the intended victim was (not where


the aggressor was situated) – so long as
2 the weapon or the bullet either touched him
Attempted homicide, etc. or fell inside the territory where he was

3
Bigamy Where the illegal marriage was performed

Where the property was unlawfully taken


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

Where the object of the crime was received


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

Conspiracy to commit treason, rebellion, Where the conspiracy was formed (not
6 or seditionNOTE: Other conspiracies are where the overt act of treason, rebellion or
NOT penalized by our laws sedition was committed)

7
Libel Where published or circulated

8 Any place where the offense begins, exists


Continuing crime 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 & therefore
Powers and liabilities 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 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 & law of


the place of performance (the act or
Validity of corporate acts & contracts contract must be authorized by BOTH
(including ultra vires acts) 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
Manner & effect of dissolution 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
Domicile (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
Receivers (appointment & powers) 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 The personal law of the partnership, i.e.,
personality of the firm; the capacity to the law of the place where it was created
contract; liability of the firm & the partners (Article 15 of the Code of Commerce)
to 3rd persons (Subject to the exceptions given above as
in the case of corps.)

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

Dissolution, winding up, & termination of


branches in the RP 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
Domicile (Article. 15)

RP law insofar as the assets in the RP are


concerned can be exercised as such only
Receivers in the RP

Foundations (combination of capital independent Personal law of the foundation (place of


of individuals, usually not for profit) principal center of administration)