Professional Documents
Culture Documents
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 Municipal in International in
Nature character character
Generally affected
by public interest;
Private transactions those in general are
3 Transactions between private of interest only to
involved individuals 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
Remedies
4 and Resort to municipal diplomatic
Sanctions tribunals 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. 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:
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
(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)
(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
3
Age of majority Same
5
Use of titles of nobility Same
6
Absence Same
Lex loci
celebrationis EXCEPT if
the marriage is:
1. Highly immoral
(like bigamous/
polygamous
marriages)
Celebrated 2. Universally
Abroad considered
Between Foreigners incestuous
(between brother-
sister, and
ascendants-
descendants)
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 –
nationality of
Personal rights &
1 obligations between husband at the time
husband & wife of wedding)
Rules on Property
FACTUAL SITUATION POINT OF CONTACT
Means of Transportation
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
Effect on a corporation of
7 the sale of corporate Law of the place
shares incorporation
Lex loci
celebrationis therefore
void even if apparently
allowed by Article 817
because the prohibition on
3 joint wills is a clear
Made by aliens in the RP expression of public policy
Revocation of Wills
Lex loci
celebrationis (Article 17
Formal or Extrinsic Validity {1})
Exceptions
1. Alienation &
encumbrance of
property Lex situs (Article 16 [1])
Exception
Rules on Torts
FACTUAL SITUATION POINT OF CONTACT
Rules on Crimes
FACTUAL SITUATION POINT OF CONTACT
Generally where
Essential elements of a crime committed (locus regit
and penalties actum)
7 Where published or
Libel circulated
Corporations
Formation of the
corporation (requisites);
kind of stocks, transfer of
stocks to bind the
corporation, issuance,
amount & legality & Law of the place of
3.dividends, powers & incorporation
duties of members,
stockholders and officers
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 & authority of the
powers) appointing court
Partnerships
The personal law of the
partnership, i.e., the law
The existence or non- of the place where it was
existence of legal created (Article 15 of the
personality of the firm; Code of Commerce)
the capacity to contract; (Subject to the exceptions
liability of the firm & the given above as in the case
partners to 3rd persons of corps.)
Creation of branches in
the RP; validity & effect
of the branches’ RP law (law of the place
commercial transaction; where branches were
& the jurisdiction of the created) (Article 15, Code
court of Commerce)
Reference:
Civil Law (Conflict of Laws) Memory Aid
Ateneo Central Bar Operations 2001