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.

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
Persons involved
Transactions involved
Remedies and Sanctions
Municipal in character
Dealt with by private
individuals; governs individuals
in their private transactions
which involve a foreign
element
Private transactions between
private individuals
Resort to municipal tribunals
International in character
Sovereign states and other
entities possessing
international personality, e.g.,
UN; governs states in their
relationships amongst
themselves
Generally affected by public
interest; those in general are of
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
measures under the UN
Charter, and war.
SOURCES:

Direct: Indirect:
1. Constitutions 1. Natural moral law
2. Codifications Work of writers
Special Laws
Treaties and Conventions
Judicial Decisions
International Customs

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 refers 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

Assume jurisdiction and apply either the law of the forum or of another state

i. A specific law of the forum decrees that internal law should apply

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

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

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

APPLY FOREIGN LAW – when properly pleaded and proved

THEORIES WHY FOREIGN LAW SHOULD BE GIVEN EFFECT

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

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.

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

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”

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)
Ways & effects of emancipation Same
Age of majority
Use of names and surnames
Use of titles of nobility
Absence
Presumptive death & survivorship Lex fori (Article 43, 390, 391, CC; Rule 131 §5 [jj],
Rules of Court)

RULES ON MARRIAGE AS A CONTRACT

FACTUAL SITUATION POINT OF CONTACT

Celebrated Abroad Between Filipinos Lex loci celebrationis is without prejudice to the
exceptions under Articles 25, 35 (1, 4, 5 & 6),
36, 37 & 38 of the Family Code (bigamous &
incestuous marriages) & consular marriages

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
Celebrated in RP Between Foreigners National law (Article 21, FC) PROVIDED the
marriage is not highly immoral or universally
considered incestuous)
Mixed National law of Filipino (otherwise public policy
may be militated against)
Marriage by proxy (NOTE: Lex loci celebrationis (with prejudice to the
a marriage by proxy is foregoing rules)
considered celebrated
where the proxy appears
 RULES ON MARRIAGE AS A STATUS

1 FACTUAL SITUATION POINT OF CONTACT

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

2 Property relations bet husband & wife
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
MATRIMONIAL PROPERTY REGIME)

RULES ON PROPERTY

FACTUAL SITUATION POINT OF CONTACT

Real property Lex rei sitae (Article 16, CC)
Exceptions Successional rights National law of decedent (Article 16
par. 2, CC)
Capacity to succeed National law of decedent (Article. 1039)
Contracts involving real property which The law intended will be the proper law
do not deal with the title thereto of the contract (lex loci voluntantis or
lex loci intentionis)
Contracts where the real property is The principal contract (usually loan) is
given as security governed by the proper law of 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)

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

Exceptions: same as those for real
property
2 Means of Transportation
Vessels
Other means
3 Things in transitu (these things have a
changing status because they move)
Loss, destruction, deterioration
Validity & effect of the seizure of the
goods
Disposition or alienage of the goods
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)
Law of the depot (storage place for
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 intentionis –
because here there is a contract

FACTUAL SITUATION POINT OF CONTACT

INTANGIBLE PERSONAL PROPERTY (CHOSES IN ACTION)
1 Recovery of debts or involuntary
assignment of debts (garnishment)
2 Voluntary assignment of debts
Other Theories:
Where debtor may be effectively served
with summons (usually the domicile)
Lex loci voluntatis or lex loci intentionis
(proper law of the contract)

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 Administration of debts Lex situs of assets of the debtor (for these
assets can be held liable for the debts)
5 Negotiability or non-negotiability of an The right embodied in the instrument (for
instrument example, in the case of a Swedish bill of
exchange, Swedish law determines its
negotiability)
6 Validity of transfer, delivery or In general, situs of the instrument at the
negotiation of the instrument time of transfer, delivery or negotiation
7 Effect on a corporation of the sale of Law of the place incorporation
corporate shares
8 Effect between the parties of the sale Lex loci voluntatis or lex loci intentionis
of corporate shares (proper law of the contract) – for this is
really a contract; usually this is the place
where the certificate is delivered)
9 Taxation on the dividends of Law of the place of incorporation
corporate shares
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
13 Patents, copyrights, trademarks, trade In the absence of a treaty, they are
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
1 Made by an alien abroad
2 Made by a Filipino abroad
3 Made by an alien in the RP
Lex nationalii OR lex domicilii OR RP law
(Article 816, CC), OR lex loci celebrationis
(Article 17(1))
Lex nationalii OR lex loci celebrationis
(Article 815)
Lex nationalii OR lex loci celebrationis
(Article 817)

FACTUAL SITUATION POINT OF CONTACT

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

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

829)
2 If done OUTSIDE the RP 1. Lex loci celebrationis (of the
1. By a NON-DOMICILIARY making of the will, NOT
2. By a DOMICILIARY of the revocation), OR lex domicilii
RP (Article 829)
2. Lex domicilii (RP law) OR lex loci
actus (of the revocation) (Article
17)

PROBATE OF WILLS MADE ABROAD

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

2 If already probated abroad
procedural aspects, i.e., the will must be
fully probated 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 is enough to
ask for the enforcement here of the
foreign judgment on the probate abroad

EXECUTORS AND ADMINISTRATORS

1 Where appointed Place where domiciled at death or incase

of non-domiciliary, where assets are
found
2 Powers 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 administrators &
receivers even in non-successive cases

RULES ON OBLIGATION AND CONTRACTS

FACTUAL SITUATION POINT OF CONTACT

Formal or Extrinsic Validity
Exceptions
Alienation & encumbrance of
property
Consular contracts
Lex loci celebrationis (Article 17 {1})
Lex situs (Article 16 [1])
Law of the RP (if made in RP consulates)
 Capacity of Contracting Parties
Exception
Alienation & encumbrance of property
Intrinsic validity (including interpretation of the
instruments, and amt. of damages for breach)
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
Lex situs (Article 16 {1})
Proper law of the contract – lex 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)
8. Wills, Succession & Administration of Conflict Rules

RULES ON TORTS

FACTUAL SITUATION POINT OF CONTACT

Liability & damages for torts in general NOTE: 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, murder, Where the victim was injured (not where the
infanticide & parricide aggressor wielded his weapon)
Attempted homicide, etc. Where the intended victim was (not where 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
Theft & robbery Where the property was unlawfully taken from
the victim (not the place to which the criminal
went after the commission of the crime)
Estafa or swindling thru false representation Where the object of the crime was received (not
where the false representations were made)
Conspiracy to commit treason, rebellion, or Where the conspiracy was formed (not where the
seditionNOTE: Other conspiracies are NOT overt act of treason, rebellion or sedition was
penalized by our laws committed)
Libel Where published or circulated
Continuing crime Any place where the offense begins, exists or
continue
Complex crime Any place where any of the essential elements of
the crime took place
RULES ON JURIDICAL PERSONS
FACTUAL SITUATION
Corporations
Powers and liabilities
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)
POINT OF CONTACT
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 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

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
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)