Civil Law (Conflict of Laws)

Memory Aid
CONFLICTS OF LAWS; efinition:
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, d, !onflict of "aws, #1$.
. That part of municipal law of a state which directs its
courts and administrative agencies, when confronted with
a legal problem involving a foreign element, whether or
not the% should appl% a foreign law&s ('aras$.
ISTIN!"IS#$ F%OM &"'LIC INT$%NATIONAL
LAW
'ASIS CONFLICT OF LAW LAW OF NATIONS
1
(ature )unicipal in character *nternational in
character

'ersons
involved
+ealt with b% private
individuals, governs
individuals in their
private transactions
which involve a foreign
element
-overeign states and
other entities possessing
international
personalit%, e.g., .(,
governs states in their
relationships amongst
themselves
/
Transactions
involved
'rivate transactions
between private
individuals
0enerall% affected b%
public interest, those in
general are of interest
onl% to sovereign states
1
2emedies 2esort to municipal )a% be peaceful or
1
and
-anctions
tribunals forcible
'eaceful: includes
diplomatic negotiation,
tender 3 e4ercise of
good offices, mediation,
in5uir% 3 conciliation,
arbitration, 6udicial
settlement b% *!J,
reference to regional
agencies
7orcible: includes
severance of diplomatic
relations, retorsions,
reprisals, embargo,
bo%cott, non8
intercourse, pacific
bloc9ades, collective
measures under the .(
!harter, and war.
SO"%C$S(
+irect:
1. !onstitutions
. !odifications
1. -pecial "aws

. Treaties and !onventions

/. Judicial +ecisions
1. *nternational !ustoms
*ndirect:
1. (atural moral law
1. :or9 of writers
T$%MS(
Le) omicilii ; law of the domicile, in conflicts, the law of
one<s domicile applied in the choice of law 5uestions
Le) Fori ; law of the forum, that is, the positive law of the
state, countr% or 6urisdiction of whose 6udicial s%stem of the
court where the suit is brought or remed% is sought is an integral
part. -ubstantive rights are determined b% the law where the
action arose (le4 loci$ while the procedural rights are governed
b% the law of the place of the forum (le4 fori$
Le) Loci ; law of the place
Le) Loci Contract*s ; 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 ma% or ma% not be the
same as that of the place where it was made
Le) Loci %ei Sitae ; law of the place where the thing or sub6ect
matter is situated, the title to realt% or 5uestion of real estate law
can be affected onl% b% the law of the place where it is situated
Le) Sit*s 8 law of the place where propert% is situated, the
general rule is that lands and other immovables are governed b%
the law of the state where the% are situated
/
Le) Loci Act*s 8 law of the place where the act was done
Le) Loci Cele+rationis ; law of the place where the contract is
made
Le) Loci Sol*tionis ; law of the place of solution, the law of
the place where pa%ment or performance of a contract is to be
made
Le) Loci elicti Commissi ; law of the place where the crime
too9 place
Le) Mereatoria ; law merchant, commercial law, that s%stem
of laws which is adopted b% all commercial nations and
constitute as part of the law of the land, part of common law
Le) Non Scri,ta ; the unwritten common law, which includes
general and particular customs and particular local laws
Le) &atriae 8 national law
%envoi octrine - doctrine whereb% a 6ural matter is presented
which the conflict of laws rules of the forum refer to a foreign
law which in turn, refers the matter bac9 to the law of the forum
or a third state. :hen reference is made bac9 to the law of the
forum, this is said to be =remission> while reference to a third
state is called =transmission.>
Nationality T.eory 8 b% virtue of which the status and capacit%
of an individual are generall% governed b% the law of his
nationalit%. This is principall% adopted in the 2'
omiciliary T.eory ; in general, the status, condition, rights,
obligations, 3 capacit% of a person should be governed b% the
law of his domicile.
1
Lon/ Arm Stat*tes ; -tatutes allowing the courts to e4ercise
6urisdiction when there are minimum contacts between the non8
resident defendant and the forum.
WA0S OF $ALIN! WIT# A CONFLICTS &%O'L$M(
1. +ismiss the case for lac9 of 6urisdiction, or on the ground
of forum non8conveniens
OCT%IN$ OF FO%"M NON CONVENIENS ; the forum
is inconvenient, the ends of 6ustice would be best served b% trial
in another forum, the controvers% ma% be more suitabl% tried
elsewhere
1. Assume 6urisdiction and appl% either the law of the forum
or of another state
1. i1 A s,ecific law of t.e for*m decrees t.at
internal law s.o*ld a,,ly
1. A&&L0 INT$%NAL LAW ; forum law should be applied
whenever there is good reason to do so, there is a good
reason when an% one of the following factors is present:
Examples:
Article1 23 of t.e Civil Code ; real and personal propert%
sub6ect to the law of the countr% where the% are situated and
testamentar% succession governed b% lex nationalii
?
Article 456 of t.e Civil Code ; ma9es revocation done
outside 'hilippines valid according to law of the place
where will was made or lex domicilii
Article 426 of t.e Civil Code ; prohibits 7ilipinos from
ma9ing 6oint wills even if valid in foreign countr%
1. ii1 T.e ,ro,er forei/n law was not ,ro,erly ,leaded
and ,roved
NOTICE AND PROOF OF FOREIGN LAW
As a general rule, courts do not ta9e 6udicial notice of
foreign laws, 7oreign laws must be pleaded and proved
@ffect of failure to plead and prove foreign law (/
alternatives$ of the forum court:
(a$ +ismiss the case for inabilit% to establish cause of action
(b$ Assume that the foreign law of the same as the law of the
forum
(c$ Appl% the law of the forum
1. T.e case falls *nder any of t.e e)ce,tions to t.e
a,,lication of forei/n law
Exceptions to application of foreign la!
The foreign law is contrar% to the public polic% of the
forum
The foreign law is procedural in nature
6
The case involves issues related to propert%, real or
personal (le4 situs$
The issue involved in the enforcement of foreign claim is
fiscal or administrative
The foreign law or 6udgment is contrar% to good morals
(contra bonos mores$
The foreign law is penal in character
:hen application of the foreign law ma% wor9 undeniable
in6ustice to the citizens of the forum
:hen application of the foreign law might endanger the
vital interest of the state
. A&&L0 FO%$I!N LAW - when properl% pleaded and
proved
T#$O%I$S W#0 FO%$I!N LAW S#O"L '$ !I7$N
$FF$CT
1. T.eory of Comity ; foreign law is applied because of its
convenience 3 because we want to give protection to our
citizens, residents, 3 transients in our land
. T.eory of 7ested %i/.ts ; we see9 to enforce not foreign
law itself but the rights that have been vested under such
foreign law, an act done in another state ma% give rise to
the e4istence of a right if the laws of that state crated such
right.
A
/. T.eory of Local Law8 adherents of this school of thought
believe that we appl% foreign law not because it is foreign,
but because our laws, b% appl%ing similar rules, re5uire us
to do so, hence, it is as if the foreign law has become part
3 parcel of our local law
1. T.eory of #armony of Laws ; theorists here insist that
in man% cases we have to appl% the foreign laws so that
wherever a case is decided, that is, irrespective of the
forum, the solution should be appro4imatel% the same,
thus, identical or similar solutions an%where 3
ever%where. :hen the goal is realized, there will be
=harmon% of laws>
?. T.eory of 8*stice ; the purpose of all laws, including
!onflict of "aws, is the dispensing of 6ustice, if this can
be attained in ma% cases appl%ing the proper foreign law,
we must do so
%*les on Stat*s in !eneral
Fact*al Sit*ation &oint of Contact
1
Beginning of personalit% of
natural person
(ational law of the child
(Article 1?, !!$

:a%s 3 effects of
emancipation
-ame
/
Age of ma6orit% -ame
1
.se of names and surnames -ame
?
.se of titles of nobilit% -ame
6
Absence -ame
A
'resumptive death 3
survivorship
Lex fori (Article 1/, /CD, /C1,
!!, 2ule 1/1 #? E66F, 2ules of
!ourt$
G
%*les on Marria/e as a Contract
FACT"AL SIT"ATION &OINT OF CONTACT
!elebrated
Abroad
Between 7ilipinos Lex loci celebrationis is
without pre6udice to the
e4ceptions under Articles
?, /? (1, 1, ? 3 6$, /6, /A
3 /G of the 7amil% !ode
(bigamous 3 incestuous
marriages$ 3 consular
marriages
Between 7oreigners Lex loci celebrationis
EXCEPT if the marriage is:
1. Highl% immoral (li9e
bigamous&
pol%gamous
marriages$
. .niversall%
considered incestuous
(between brother8
sister, and ascendants8
descendants$
)i4ed Appl% 1 (b$ to uphold
validit% of marriage
!elebrated
in 2'
Between 7oreigners (ational law (Article 1,
7!$ '2IJ*+@+ the
marriage is not highl%
immoral or universall%
considered incestuous$
)i4ed (ational law of 7ilipino
(otherwise public polic%
C
ma% be militated against$
)arriage b% pro4%
(NOTE: a marriage b%
pro4% is considered
celebrated where the
pro4% appears
Lex loci celebrationis (with
pre6udice to the foregoing
rules$
%*les on Marria/e as a Stat*s
FACT"AL SIT"ATION &OINT OF CONTACT
1
'ersonal rights 3 obligations
between husband 3 wife
(ational of husband
(Note: @ffect of subse5uent
change of nationalit%:
1. *f both will have a new
nationalit% ; the new one
. *f onl% one will change ;
the last common
nationalit%
/. *f no common nationalit%
; nationalit% of husband
at the time of wedding$

'ropert% relations bet husband

3 wife
(ational law of husband
without pre6udice to what the
!! provides concerning
2@A" propert% located in the
2' (Article GD$ (NOTE:
!hange of nationalit% has (I
@77@!T. This is the
OCT%IN$ OF
IMM"TA'ILIT0 IN T#$
MAT%IMONIAL
1D
&%O&$%T0 %$!IM$)
%*les on &ro,erty
FACT"AL SIT"ATION &OINT OF CONTACT
%eal ,ro,erty Lex rei sitae (Article 239
CC)
Except
ions
-uccessional rights (ational law of decedent
(Article 16 par. , !!$
!apacit% to succeed (ational law of decedent
(Article. 1D/C$
!ontracts involving real
propert% which do not deal
with the title thereto
The law intended will be the
proper law of the contract
(lex loci voluntantis or lex
loci intentionis$
!ontracts where the real
propert% is given as securit%
The principal contract
(usuall% loan$ is governed b%
the proper law oft the
contract ; (lex loci voluntatis
or lex loci intentionis$
NOTE: the mortgage itself is
governed b% lex rei sitae.
There is a possibilit% that the
principal contract is valid but
the mortgage is void, or it
ma% be the other wa%
around. *f the principal
contract is void, the mortgage
will also be void (for lac9 of
proper cause or
consideration$, although b%
11
itself, the mortgage could
have been valid.
Tan/i+le ,ersonal ,ro,erty (c.oses in ,ossession)
1
*n 0eneral "e4 rei sitae (Article. 16, !!$
Exceptions: same as those for real
propert%
EXCEPTION: same as those
for real propert% @K!@'T
that in the e4ample
concerning mortgage, the
same must be changed to
pledge of personal propert%$

)eans of Transportation
Jessels "aw of the flag (or in some
cases, place of registr%$
Ither means "aw of the depot (storage
place for supplies or resting
place$
/
Things in transitu (these things
have a changing status because
the% move$
"oss, destruction, deterioration "aw of the destination
(Article. 1A?/, !!$
Jalidit% 3 effect of the seizure of
the goods
Locus regit actum (where
seized$ ; because said place
is their temporar% situs
+isposition or alienage of the
goods
Lex loci volutantis or lex loci
intentionis ; because here
there is a contract

FACT"AL SIT"ATION &OINT OF CONTACT
INTan/I'L$ &$%SONAL
&%O&$%T0 (C#OS$S IN
ACTION$
1
1
2ecover% of debts or
involuntar% assignment of debts
(garnishment$
:here debtor ma% be
effectivel% served with
summons (usuall% the
domicile$

Joluntar% assignment of debts Lex loci voluntatis or lex loci

intentionis (proper law of the
contract$
Ither Theories:
1. (ational law of the debtor or creditor
. +omicile of the debtor or creditor
/. Lex loci celebrationis
1. Lex loci solutionis
/
Ta4ation of debts +omicile of creditor
1
Administration of debts Lex situs of assets of the
debtor (for these assets can be
held liable for the debts$
?
(egotiabilit% or non8
negotiabilit% of an instrument
The right embodied in the
instrument (for e4ample, in
the case of a -wedish bill of
e4change, -wedish law
determines its negotiabilit%$
6
Jalidit% of transfer, deliver% or
negotiation of the instrument
*n general, situs of the
instrument at the time of
transfer, deliver% or
negotiation
A
@ffect on a corporation of the
sale of corporate shares
"aw of the place
incorporation
G
@ffect between the parties of
the sale of corporate shares
"e4 loci voluntatis or le4 loci
intentionis (proper law of the
contract$ ; for this is reall% a
contract, usuall% this is the
place where the certificate is
delivered$
1/
C
Ta4ation on the dividends of
corporate shares
"aw of the place of
incorporation
1D
Ta4ation on the income from
the sale of corporate shares
"aw of the place where the
sale was consummated
11
7ranchises "aw of the place that granted
them
1
0oodwill of the business 3
ta4ation thereto
"aw of the place where the
business is carried on
1/
'atents, cop%rights, trademar9s,
trade names
*n the absence of a treat%,
the% are protected onl% b% the
state that granted them
NOTE: foreigners ma% sue for
infringement of trademar9s
and trade names in the 2'
I("L *7 7ilipinos are
granted reciprocal
concessions in the state of the
foreigners
Wills9 S*ccession : Administration of Conflict %*les
FACT"AL SIT"ATION &OINT OF CONTACT
@4trinsic Jalidit% of :ills
1
)ade b% an alien abroad Lex nationalii I2 lex
domicilii I2 2' law (Article
G16, !!$, I2 lex loci
celebrationis (Article 1A(1$$

)ade b% a 7ilipino abroad Lex nationalii I2 lex loci

celebrationis (Article G1?$
/
)ade b% an alien in the 2' Lex nationalii I2 lex loci
celebrationis (Article G1A$

11
FACT"AL SIT"ATION &OINT OF CONTACT
$)trinsic 7alidity of 8oint Wills
(made in t.e same instr*ment)
1
)ade b% 7ilipinos abroad Lex nationalii (void, even if
valid where made$ (Article
G1C$

)ade b% aliens abroad Jalid if valid according to lex

domicilii or lex loci
celebrationis (Article G1C$
/
)ade b% aliens in the 2' Lex loci celebrationis
therefore void even if
apparentl% allowed b% Article
G1A because the prohibition
on 6oint wills is a clear
e4pression of public polic%
*ntrinsic Jalidit% of :ills Lex nationalii of the deceased
; regardless of the
"I!AT*I( 3 (AT.2@ of
the propert% (Article 16 ($$
!apacit% to -ucceed Lex nationalii of the deceased
; not of the heir (Article
1D/C$
%evocation of Wills
1
*f done in the 2' Lex loci actus (of the
revocation$ (Article. GC$

*f done I.T-*+@ the 2'

1. B% a (I(8
+I)*!*"*A2L
Lex loci celebrationis (of the
ma9ing of the will, (IT
revocation$, I2 lex domicilii
(Article GC$
1. B% a +I)*!*"*A2L of
the 2'
Lex domicilii (2' law$ I2 lex
loci actus (of the revocation$
(Article 1A$
&ro+ate of Wills Made A+road
1?
1
*f not %et probated abroad Lex fori of the 2' applies as to
the procedural aspects, i.e.,
the will must be full% probated
here 3 due e4ecution must be
shown

*f alread% probated abroad Lex fori of the 2' again

applies as to the procedural
aspects, must also be probated
here, but instead of proving
due e4ecution, generall% it is
enough to as9 for the
enforcement here of the
foreign 6udgment on the
probate abroad
$)ec*tors and Administrators
1
:here appointed 'lace where domiciled at
death or incase of non8
domiciliar%, where assets are
found

'owers !o8e4tensive with the

5ualif%ing of the appointing
court ; powers ma% onl% be
e4ercised within the territorial
6urisdiction of the court
concerned
NOTE: these rules also appl%
to principal, domiciliar%, or
ancillar% administrators 3
receivers even in non8
successive cases
%*les on O+li/ation and Contracts
FACT"AL SIT"ATION &OINT OF CONTACT
16
Formal or $)trinsic 7alidity Lex loci cele"rationis
(Article 2; <2=)
@4ceptions
1. Alienation 3
encumbrance of propert%
"e4 situs (Article 16 E1F$
1. !onsular contracts "aw of the 2' (if made in 2'
consulates$
!apacit% of !ontracting 'arties (ational law (Article 1?$
without pre6udice to the case
of *nsular 0overnment v
7ran9 1/ ' /6, where the -!
adhered to the theor% of lex
loci celebrationis
Exception

Alienation 3 encumbrance of
propert%
Lex situs (Article 16 M1N$
*ntrinsic validit% (including
interpretation of the instruments,
and amt. of damages for breach$
'roper law of the contract ;
lex contractus (in the broad
sense$, meaning the lex
voluntatis or lex loci
intentionis
Ot.er T.eories are(
1. Lex loci cele"rationis (defect: this ma9es possible the
evasion of the national law$
. Lex nationalii (defect: this ma% impede commercial
transactions$
/. Lex loci sol#tionis (law of the place of performance$
(defect: there ma% be several places of performance
1. 'rof )inor<s solution:
1A
?. 'erfection ; lex loci celebrationis
6. !ause or consideration ; lex loci considerations
A. 'erformance ; lex loci solutionis (defect: this theor%
combines the defect of the others$
%*les on Torts
FACT"AL SIT"ATION &OINT OF CONTACT
"iabilit% 3 damages for torts in
general
NOTE: The locus delicti (place
of commission of torts$ is faced
b% the problem of
characterization. *n civil law
countries, the locus delicti is
generall% 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: liabilit% for foreign
torts ma% be enforced in the 2'
if:
1. The tort is not penal in
character
. *f the enforcement of the
tortious liabilit% won<t
contravene our public
polic%
/. *f our 6udicial machiner%
is ade5uate for such
enforcement
%*les on Crimes
FACT"AL SIT"ATION &OINT OF CONTACT
@ssential elements of a crime andenerall! where committed
1G
penalties "locus regit actum#
T.eories as to w.at co*rt .as >*risdiction(
1. Territoriality t.eory ; where the crime was committed
. Nationality t.eory ; countr% which the criminal is citizen
or a sub6ect
/. 2eal theor% ; an% state whose penal code has been violated
has 6urisdiction, where the crime was committed inside or
outside its territor%
1. &rotective t.eory ; an% state whose national interests ma%
be 6eopardized has 6urisdiction so that it ma% protect itself
?. Cosmo,olitan or *niversality t.eory ; state where the
criminal is found or which has his custod% has 6urisdiction
6. &assive ,ersonality t.eory ; the state of which the victim
is a citizen or sub6ect has 6urisdiction
NOTE: *n the 2', we follow the territorialit% theor% in general,
e4ception: Article , 2'!, stresses the protective theor%
T.e loc#s $elicti of certain
crimes
1
7rustrated an consummated,
homicide, murder, infanticide 3
parricide
:here the victim was in6ured
(not where the aggressor
wielded his weapon$

Attempted homicide, etc. :here 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
territor% where he was
/
Bigam% :here the illegal marriage was
performed
1C
1
Theft 3 robber% :here the propert% was
unlawfull% ta9en from the
victim (not the place to which
the criminal went after the
commission of the crime$
?
@stafa or swindling thru false
representation
:here the ob6ect of the crime
was received (not where the
false representations were
made$
6
!onspirac% to commit treason,
rebellion, or sedition
NOTE: Ither conspiracies are
(IT penalized b% our laws
:here the conspirac% was
formed (not where the overt
act of treason, rebellion or
sedition was committed$
A
"ibel :here published or circulated
G
!ontinuing crime An% place where the offense
begins, e4ists or continues
C
!omple4 crime An% place where an% of the
essential elements of the crime
too9 place
%*les on 8*ridical &ersons
FACT"AL SIT"ATION &OINT OF CONTACT
Cor,orations
'owers and liabilities 0eneral rule: the law of the
place of incorporation
EXCEPTION$:
1. 7or constitutional
purposes ; even of the
corporation was
incorporated in the 2', it
D
is nor deemed a 7ilipino
corporation 3 therefore
can<t ac5uire land, e4ploit
our natural resources, A
operate public utilities
unless 6DO of capital if
7ilipino owned
. 7or wartime purposes ;
we pierce the corporation
veil 3 go to the
nationalit% of the
controlling stoc9holders
to determine if the
corporation is an enem%
(!I(T2I" T@-T$
7ormation of the corporation
(re5uisites$, 9ind of stoc9s,
transfer of stoc9s to bind the
corporation, issuance, amount 3
legalit% 3 dividends, powers 3
duties of members, stoc9holders
and officers
"aw of the place of
incorporation
Jalidit% of corporate acts 3
contracts (including ultra vires
acts$
"aw of the place of
incorporation 3 law of the
place of performance (the act
or contract must be authorized
b% BITH laws$
2ight to sue 3 amenabilit% to
court processes 3 suits against it
Lex fori
1
)anner 3 effect of dissolution "aw of the place of
incorporation provided that
the public polic% of the forum
is not militated against
+omicile *f not fi4ed b% the law
creating or recognizing the
corporation or b% an% other
provision ; the domicile is
where it is legal representation
is established or where it
e4ercises its principal
functions (Article. 1?$
2eceivers (appointment 3
powers$
'rincipal receiver is appointed
b% the courts of the state of
incorporation, ancillar%
receivers, b% the courts of an%
state where the corporation
has assets (authorit% is !I8
@KT@(-*J@$ w& the
authorit% of the appointing
court
NOTE: Theories on the personal and&or governing law of
corporations:
1. "aw of the place of incorporation (this is generall% the 2'
rule$
. "aw of the place or center of management (center for
administration or siege social$ (center office principle$
/. "aw of the place of e4ploitation (exploitation centre or
siege d% exploitation$
&artners.i,s
The e4istence or non8e4istence
of legal personalit% of the firm,
the capacit% to contract, liabilit%
The personal law of the
partnership, i.e., the law of the
place where it was created

of the firm 3 the partners to /

rd

persons
(Article 1? of the !ode of
!ommerce$ (-ub6ect to the
e4ceptions given above as in
the case of corps.$
!reation of branches in the 2',
validit% 3 effect of the
branches< commercial
transaction, 3 the 6urisdiction of
the court
2' law (law of the place
where branches were created$
(Article 1?, !ode of
!ommerce$
+issolution, winding up, 3
termination of branches in the
2'
2' law (Article 1?, !ode of
!ommerce$
+omicile *f not fi4ed b% the law
creating or recognizing the
partnership or b% an% other
provision ; the domicile is
where it is legal representation
is established or where it
e4ercises its principal
functions (Article. 1?$
2eceivers 2' law insofar as the assets in
the 2' are concerned can be
e4ercised as such onl% in the
2'
7oundations (combination of
capital independent of
individuals, usuall% not for profit$
'ersonal law of the foundation
(place of principal center of
administration$

/