Civil Law (Conflict of Laws) Memory Aid

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
2 Persons
involved
Dealt with by private individuals;
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
3 Transactions
involved
Private transactions between
private individuals
Generally affected by public interest; those in
general are of interest only to sovereign states
4 Remedies and
Sanctions Resort to municipal tribunals
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:
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 ones 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
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
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: a
marriage by proxy is considered
celebrated where the proxy
appears Lex loci celebrationis (with prejudice to the foregoing rules)
Rules on Marriage as a Status

FACTUAL SITUATION POINT OF CONTACT
1
Personal rights &
obligations between
husband & wife
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 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 do not
deal with the title thereto
The law intended will be the proper law of the
contract (lex loci voluntantis orlex 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)
1
In General Lex rei sitae (Article. 16, CC)

Exceptions: same as those for real property
EXCEPTION: same as those for real property
EXCEPT that in the example concerning
mortgage, the same must be changed to pledge
of personal property)
2
Means of Transportation

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)
3
Things in transitu (these things have a
changing status because they move)

Loss, destruction, deterioration Law of the destination (Article. 1753, CC)
Validity & effect of the seizure of the goods
Locus regit actum (where seized) because
said place is their temporarysitus
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)

1 Recovery of debts or involuntary assignment of
debts (garnishment)
Where debtor may be effectively served with
summons (usually the domicile)
2
Voluntary assignment of debts
Lex loci voluntatis or lex loci 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
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 instrument
The right embodied in the instrument (for
example, in the case of a Swedish bill of exchange,
Swedish law determines its negotiability)
6 Validity of transfer, delivery or negotiation of the
instrument
In general, situs of the instrument at the time of
transfer, delivery or negotiation
7 Effect on a corporation of the sale of corporate
shares Law of the place incorporation
8 Effect between the parties of the sale of corporate
shares
Lex loci voluntatis or lex loci intentionis (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 corporate shares Law of the place of incorporation
10 Taxation on the income from the sale of corporate
shares Law of the place where the sale was consummated
11
Franchises Law of the place that granted them
12
Goodwill of the business & taxation thereto Law of the place where the business is carried on
13
Patents, copyrights, trademarks, trade names
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
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
Lex nationalii OR lex domicilii OR RP law (Article
816, CC), OR lex loci celebrationis(Article 17(1))
2
Made by a Filipino abroad Lex nationalii OR lex loci celebrationis(Article 815)
3
Made by an 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)

1
Made by Filipinos abroad
Lex nationalii (void, even if valid where made)
(Article 819)
2
Made by aliens abroad
Valid if valid according to lex domicilii orlex loci
celebrationis (Article 819)
3
Made by aliens in the RP
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
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

1
If done in the RP Lex loci actus (of the revocation) (Article. 829)
2
If done OUTSIDE the RP

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

1
If not yet probated abroad
Lex fori of the RP applies as to the procedural
aspects, i.e., the will must be fully probated here &
due execution must be shown
2
If already probated abroad
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 concerned
NOTE: 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
property Lex situs (Article 16 [1])
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 instruments, and amt. of damages for
breach)
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 Minors 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 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 wont
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

1 Frustrated an consummated, homicide, murder,
infanticide & parricide
Where the victim was injured (not where the
aggressor wielded his weapon)
2
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
3
Bigamy Where the illegal marriage was performed
4
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)
5
Estafa or swindling thru false representation
Where the object of the crime was received (not
where the false representations were made)
6
Conspiracy to commit treason, rebellion, or
sedition
NOTE: Other conspiracies are NOT penalized by
our laws
Where the conspiracy was formed (not where the
overt act of treason, rebellion or sedition was
committed)
7
Libel Where published or circulated
8
Continuing crime
Any place where the offense begins, exists or
continues
9
Complex crime
Any place where any of the essential 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 incorporation
EXCEPTIONS:
1. For constitutional purposes even of the
corporation was incorporated in the RP, it is
nor deemed a Filipino corporation &
therefore cant 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

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

Right to sue & amenability to court processes &
suits against it Lex fori

Manner & effect of dissolution
Law of the place of incorporation provided that the
public policy of the forum is not militated against

Domicile
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)

Receivers (appointment & powers)
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 3
rd
persons
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.)

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

Dissolution, winding up, & termination of branches
in the RP RP law (Article 15, Code of Commerce)

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 of
individuals, usually not for profit)
Personal law of the foundation (place of principal
center of administration)