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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

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

Sovereign states and other


entities
possessing
international personality, e.g.,
UN; governs states in their
relationships
amongst
themselves

Private transactions between


private individuals

Generally affected by public


interest; those in general are
of interest only to sovereign
states

Transactions
involved

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

Remedies
and
Sanctions

Resort to municipal tribunals

SOURCES:
Direct:
1. Constitutions
2. Codifications
1.
2.
3.
4.

Special Laws
Treaties and Conventions
Judicial Decisions
International Customs

Forcible: includes severance


of
diplomatic
relations,
retorsions, reprisals, embargo,
boycott,
non-intercourse,
pacific blockades, collective
measures under the UN
Charter, and war.

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
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)

Rules on Marriage as a Contract


Celebrated
Abroad

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

Apply 1 (b) to uphold validity of

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

Rules on Marriage as a Status


1

FACTUAL SITUATION
POINT OF CONTACT
Personal rights & obligations between National of husband(Note: Effect
husband & wife
subsequent change of nationality:

of

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
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)

National law of decedent (Article.


1039)
Contracts involving real property The law intended will be the proper
which do not deal with the title law of the contract (lex loci
thereto
voluntantis orlex loci intentionis)
Contracts where the real property The principal contract (usually
is given as security
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 EXCEPTION: same as those for real
property
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)
Law of the depot (storage place
for supplies or resting place)

Other means
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 Locus regit actum (where seized)
the goods
because said place is their
temporarysitus
Disposition or alienage of the Lex
loci
volutantis or lex
loci
goods
intentionis because here there is a
contract
FACTUAL SITUATION
POINT OF CONTACT
INTangIBLE PERSONAL PROPERTY (CHOSES IN
ACTION)
1
Recovery of debts or involuntary Where debtor may be effectively
assignment of debts (garnishment)
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.
2.
3.
4.
3
4

National law of the debtor or creditor


Domicile of the debtor or creditor
Lex loci celebrationis
Lex loci solutionis

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

or In general, situs of the instrument at the


time of transfer, delivery or negotiation

Effect on a corporation of the sale of Law of the place incorporation


corporate shares

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

Law of the place where the business is


carried on
In the absence of a treaty, they are
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
2
3

Made by an alien abroad

Lex nationalii OR lex domicilii OR RP


law (Article 816, CC), OR lex loci
celebrationis(Article 17(1))
loci

Made by a Filipino abroad

Lex
nationalii OR lex
celebrationis(Article 815)

loci

Made by an alien in the RP

Lex
nationalii OR lex
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


where made) (Article 819)

Made by aliens abroad

Valid if valid according


domicilii orlex
celebrationis (Article 819)

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

if

valid
to lex
loci

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)

If done OUTSIDE the RP


1. By a NON-DOMICILIARY

1. By a DOMICILIARY of the RP

Lex loci celebrationis (of the making


of the will, NOT revocation), OR lex
domicilii(Article 829)
Lex domicilii (RP law) OR lex loci
actus (of the revocation) (Article 17)

Probate of Wills Made Abroad

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

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

Where appointed

Place where domiciled at death or


incase of non-domiciliary, where
assets are found

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

Lex loci celebrationis (Article 17 {1})

Exceptions
1. Alienation & encumbrance of
property

Lex situs (Article 16 [1])

Law of the RP (if made in RP


consulates)

1. Consular contracts

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

Capacity of Contracting Parties


Exception
Alienation
property

&

encumbrance

of

Intrinsic validity (including interpretation of


the instruments, and amt. of damages for
breach)

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 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

Liability & damages for torts in


generalNOTE: 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

POINT OF CONTACT

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
regit actum)

committed (locus

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
homicide,
parricide

an
murder,

consummated,
infanticide &

Where the victim was injured (not


where the 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
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
representation

Where the object of the crime was


received (not where the false
representations were made)

Conspiracy to commit treason,


rebellion,
or
seditionNOTE: 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)

Libel

Where published or circulated

Continuing crime

Any place where the offense begins,


exists or continues

Complex crime

Any place where any of the essential


elements of the crime took place

2
3

8
9

thru

false

illegal

marriage

was

Rules on Juridical Persons


FACTUAL SITUATION

POINT OF CONTACT

Corporations
Powers and liabilities

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 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


(including ultra vires acts)

Law of the place of incorporation &


law of the place 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 3rd 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
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)

15,

Code

of

Personal law of the foundation (place


of principal center of administration)

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