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
Nature
Municipal in character
International in character
Persons
involved
Dealt
with
by
private
individuals;
governs
individuals in their private
transactions which involve a
foreign element
Transactions
involved
Remedies
and
Sanctions
SOURCES:
Direct:
1. Constitutions
2. Codifications
1.
2.
3.
4.
Special Laws
Treaties and Conventions
Judicial Decisions
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
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:
(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
1
2
3
4
5
6
7
Factual Situation
Beginning of personality of natural
person
Ways & effects of emancipation
Age of majority
Use of names and surnames
Use of titles of nobility
Absence
Presumptive death & survivorship
Point of Contact
National law of the child (Article 15,
CC)
Same
Same
Same
Same
Same
Lex fori (Article 43, 390, 391, CC; Rule
131 5 [jj], Rules of Court)
FACTUAL SITUATION
Between Filipinos
Between Foreigners
POINT OF CONTACT
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
Lex loci celebrationis EXCEPT if the
marriage is:
1. Highly
immoral
(like
bigamous/
polygamous
marriages)
2. Universally
considered
incestuous (between brothersister,
and
ascendantsdescendants)
Mixed
Celebrated
in RP
marriage
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 Lex
loci
celebrationis (with
marriage by proxy is considered prejudice to the foregoing rules)
celebrated where the proxy
appears
Between Foreigners
FACTUAL SITUATION
POINT OF CONTACT
Personal rights & obligations between National of husband(Note: Effect
husband & wife
subsequent change of nationality:
of
Rules on Property
FACTUAL SITUATION
Real property
Exceptions
Successional rights
Capacity to succeed
POINT OF CONTACT
Lex rei sitae (Article 16, CC)
National law of decedent (Article
16 par. 2, CC)
Other means
3
Taxation of debts
Administration of debts
Domicile of creditor
Lex situs of assets of the debtor (for
these assets can be held liable for the
debts)
Negotiability or non-negotiability of an The right embodied in the instrument
instrument
(for example, in the case of a Swedish
bill
of
exchange,
Swedish
law
determines its negotiability)
Validity
of
transfer,
delivery
negotiation of the instrument
9
10
11
12
13
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)
Taxation on the dividends of corporate Law of the place of incorporation
shares
Taxation on the income from the sale of Law of the place where the sale was
corporate shares
consummated
Franchises
Law of the place that granted them
Goodwill of the business & taxation
thereto
Patents, copyrights, trademarks, trade
names
POINT OF CONTACT
1
2
3
Lex
nationalii OR lex
celebrationis(Article 815)
loci
Lex
nationalii OR lex
celebrationis(Article 817)
FACTUAL SITUATION
POINT OF CONTACT
if
valid
to lex
loci
Revocation of Wills
1
If done in the RP
1. By a DOMICILIARY of the RP
Where appointed
Powers
POINT OF CONTACT
Exceptions
1. Alienation & encumbrance of
property
1. Consular contracts
&
encumbrance
of
Rules on Torts
FACTUAL SITUATION
POINT OF CONTACT
Rules on Crimes
FACTUAL SITUATION
POINT OF CONTACT
Generally where
regit actum)
committed (locus
Frustrated
homicide,
parricide
an
murder,
consummated,
infanticide &
Bigamy
Where the
performed
Estafa
or
swindling
representation
Libel
Continuing crime
Complex crime
2
3
8
9
thru
false
illegal
marriage
was
POINT OF CONTACT
Corporations
Powers and liabilities
incorporationEXCEPTIONS:
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
Lex fori
Domicile
RP law (Article
Commerce)
Domicile
Receivers
Foundations
(combination
of
capital
independent of individuals, usually not for
profit)
15,
Code
of