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

Nature Municipal in character International in character

1

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

Transactions Private transactions between Generally affected by public

3 involved private individuals interest; those in general are of
interest only to sovereign states

Remedies and Resort to municipal tribunals May be peaceful or forcible

4 Sanctions
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.

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

1. 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

Beginning of personality of natural person National law of the child (Article 15, CC)
1

Ways & effects of emancipation Same

2

Age of majority Same

3

Use of names and surnames Same

4

Use of titles of nobility Same

5

Absence Same
6

Presumptive death & survivorship Lex fori (Article 43, 390, 391, CC; Rule 131
7 §5 [jj], Rules of Court)

Rules on Marriage as a Contract

FACTUAL SITUATION POINT OF CONTACT

Between Filipinos Lex loci celebrationis is without

Celebrated prejudice to the exceptions under
Articles 25, 35 (1, 4, 5 & 6), 36, 37 & 38 of
Abroad the Family Code (bigamous & incestuous
marriages) & consular marriages

Between Foreigners Lex loci celebrationis EXCEPT if the

marriage is:
1. Highly immoral (like bigamous/
polygamous marriages)
2. Universally considered
incestuous (between
brother-sister, and
ascendants-descendants)

Mixed Apply 1 (b) to uphold validity of marriage

Between Foreigners National law (Article 21, FC) PROVIDED

Celebrated the marriage is not highly immoral or
universally considered incestuous)
 in RP Mixed National law of Filipino (otherwise public
policy may be militated against)

Marriage by proxy (NOTE: a Lex loci celebrationis (with prejudice to

marriage by proxy is considered the foregoing rules)
celebrated where the proxy appears

Rules on Marriage as a Status

FACTUAL SITUATION POINT OF CONTACT

Personal rights & obligations between National of husband(Note: Effect of

1 husband & wife 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)

Property relations bet husband & wife National law of husband without prejudice
2 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 MATRIMONIAL
PROPERTY REGIME)

Rules on Property

FACTUAL SITUATION POINT OF CONTACT

Real property Lex rei sitae (Article 16, CC)

Successional rights National law of decedent (Article 16

Exceptions par. 2, CC)

Capacity to succeed National law of decedent (Article.

1039)

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

Contracts where the real property is
given as security
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 consideration), although by
itself, the mortgage could have been
valid.

Tangible personal property (choses in possession)

In General Lex rei sitae (Article. 16, CC)

1

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

Means of Transportation
2
Vessels Law of the flag (or in some cases, place
of registry)

Other means Law of the depot (storage place for

supplies or resting place)

Things in transitu (these things have a

3 changing status because they move)

Loss, destruction, deterioration Law of the destination (Article. 1753,

CC)

Validity & effect of the seizure of the Locus regit actum (where seized) –
goods because said place is their
temporary situs

Disposition or alienage of the goods Lex loci volutantis or lex loci

intentionis– because here there is a
contract

FACTUAL SITUATION POINT OF CONTACT

INTangIBLE PERSONAL PROPERTY (CHOSES IN

ACTION)

Recovery of debts or involuntary Where debtor may be effectively served

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

Voluntary assignment of debts Lex loci voluntatis or lex loci

2 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

Taxation of debts Domicile of creditor

3

Administration of debts Lex situs of assets of the debtor (for these

4 assets can be held liable for the debts)

Negotiability or non-negotiability of an The right embodied in the instrument (for

5 instrument example, in the case of a Swedish bill of
exchange, Swedish law determines its
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 Law of the place incorporation

7 corporate shares

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

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

9 shares

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

Franchises Law of the place that granted them

11

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

Patents, copyrights, trademarks, trade In the absence of a treaty, they are

13 names 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
granted reciprocal concessions in the state
of the foreigners

Wills, Succession & Administration of Conflict Rules

 FACTUAL SITUATION POINT OF CONTACT

Extrinsic Validity of Wills

Made by an alien abroad Lex nationalii OR lex domicilii OR RP law

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

Made by a Filipino abroad Lex nationalii OR lex loci

2 celebrationis(Article 815)

Made by an alien in the RP Lex nationalii OR lex loci

3 celebrationis(Article 817)

FACTUAL SITUATION POINT OF CONTACT

Extrinsic Validity of Joint Wills (made in the same

instrument)

Made by Filipinos abroad Lex nationalii (void, even if valid where

1 made) (Article 819)

Made by aliens abroad Valid if valid according to lex

2 domicilii or lex loci celebrationis (Article
819)

Made by aliens in the RP Lex loci celebrationis therefore void even if

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

Intrinsic Validity of Wills Lex nationalii of the deceased – regardless

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

Capacity to Succeed Lex nationalii of the deceased – not of the

heir (Article 1039)

Revocation of Wills

If done in the RP Lex loci actus (of the revocation) (Article.

1 829)

If done OUTSIDE the RP

2
1. By a NON-DOMICILIARY Lex loci celebrationis (of the making of the
will, NOT revocation), OR lex
domicilii(Article 829)
 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

If not yet probated abroad Lex fori of the RP applies as to the

1 procedural aspects, i.e., the will must be
fully probated here & due execution must
be shown

If already probated abroad Lex fori of the RP again applies as to the

2 procedural aspects; must also be probated
here, but instead of proving due execution,
generally it is enough to ask for the
enforcement here of the foreign judgment
on the probate abroad

Executors and Administrators

Where appointed Place where domiciled at death or incase of

1 non-domiciliary, where assets are found

Powers Co-extensive with the qualifying of the

2 appointing court – powers may only be
exercised within the territorial jurisdiction
of the court concernedNOTE: these rules
also apply to principal, domiciliary, or
ancillary administrators & 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 Lex situs (Article 16 [1])

property

1. Consular contracts Law of the RP (if made in RP consulates)

Capacity of Contracting Parties 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 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

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
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
2. If the enforcement of the tortious
liability won’t contravene our public
policy
3. If our judicial machinery is adequate
for such enforcement

Rules on Crimes

FACTUAL SITUATION POINT OF CONTACT

Essential elements of a crime and penalties Generally where committed (locus 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, homicide, Where the victim was injured (not where the
1 murder, infanticide & parricide aggressor wielded his weapon)

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

Bigamy Where the illegal marriage was performed

3

Theft & robbery Where the property was unlawfully taken

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

Estafa or swindling thru false Where the object of the crime was received
5 representation (not where the false representations were
made)

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

Libel Where published or circulated

7

Continuing crime Any place where the offense begins, exists or

8 continues

Complex crime Any place where any of the essential

9 elements of the crime took place

Rules on Juridical Persons

FACTUAL SITUATION POINT OF CONTACT

Corporations

Powers and liabilities 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 can’t acquire

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 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
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)
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
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)
 Dissolution, winding up, & termination of RP law (Article 15, Code of Commerce)
branches in the RP

Domicile 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)

Receivers RP law insofar as the assets in the RP are

concerned can be exercised as such only 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)