Professional Documents
Culture Documents
Conflict of Laws
That part of the 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 or foreign laws
Conflict of laws case
Any case which involves facts occurring in more than one
state or nation, so that in deciding the case, it is necessary
to make a choice between the laws of different states or
countries
Note: Conflict of laws is NOT part of international law.
Although it is sometimes thought of as part of international
law because of the presence of a foreign element in a given
problem, it is not international law in character but is part of
the municipal law of each state. By municipal law in Conflict
of Laws is meant the internal or local law of each state.
Conflict of laws vs. public international law
Public
Conflict of laws
International
Law
As to persons
Governs
Governs private
involved
sovereign states
individuals or
and entities that
corporations
are internationally
recognized or
possessed of
international
personality
As to nature
International in
Municipal in
character
character
As to
Applies only to
Deals with
transactions
transactions in
transactions
involved
which only
strictly private in
sovereign states
nature in which
or entities with
the country as
international
such has generally
personality are
no interest
concerned and
which generally
affect public
interest
As to remedies
The concerned
Recourse is had to
applied
states may first
judicial or
resort to peaceful
administrative
remedies. If these tribunals in
remedies fail, the
accordance with
states concerned
the rules of
may resort to
procedure of the
forcible remedies
country where
they sit
Sources of Conflict of Laws
1. Direct sources
Treaties
International conventions
Constitutions
Codifications and statutes
Judicial decisions
International customs
2. Indirect sources
Natural moral law
Writings and treaties of thinkers and
famous writers
Chapter 2
Jurisdiction and choice of law
How one deals with a problem in Conflict of Laws
1. First, determine whether the court has jurisdiction
over the case.
If it has no jurisdiction, the case should be
dismissed
If it has jurisdiction, the court will
determine whether it should assume
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2.
Conflict of Laws
2.
3.
Service by publication
(1) Action in rem
(2) Action quasi in rem
(3) Action involves the personal status of
plaintiff
Extraterritorial service of summons
(1) When the defendant does not reside and
is not found in the Philippines, and the
action affects the personal status of the
plaintiff
(2) When the defendant does not reside and
is not found in the Philippines, and the
action relates to or the subject of which is,
property within the Philippines (real or
personal), in which the defendant has a
claim, a lien or interest, actual or
contingent
(3) When the defendant is a non-resident but
the subject of the action is property
located in the Philippines in which the
relief demanded consists in excluding the
defendant from any interest therein
(4) When the property of a non-resident
defendant has been attached in the
Philippines
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3.
Conflict of Laws
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Characterization
Otherwise known as classification or qualification is the
process of assigning a certain set of facts or factual
situation to its proper or correct legal category. By
characterizing the legal problem, the court of the parties
involved reach the proper solution whether to apply the
local law or the proper foreign law
Most writers hold that on the grounds of practical
necessity and convenience, it is the forum or the
lex fori that should determine the problems
characterization unless the result would be a clear
injustice
Note: Modern trend is to consider prescriptive periods
or Statute of Frauds that the parties had in mind at the
time the transaction took place
Chapter 6
Persona law Theories in determining ones personal
law
Personal law.
That which attaches to him wherever he may go. The law
that generally governs his status, capacity, condition, family
relations, and the consequences of his actuations. It may
be:
1. National law
2. Law of his domicile
3. Law of the situs
Status vs. capacity
Status
Place of an individual in
society and consists of
personal qualities and
relationships more or less
permanent, with which the
state and the community are
concerned
Capacity
Only part of ones status and
may be defined as the sum
total of his rights and
obligations
Conflict of Laws
Nationality v. citizenship
Nationality
Refers to membership in a
political community, one that
is personal and more or less
permanent, not temporary.
In the field of Conflict of Laws,
are the same
Citizenship
A citizen is one who owes
allegiance to and is entitled
to the protection of the
State
nationality and citizenship
Chapter 7
The Nationality Theory
Different kinds of citizenship in the Philippines
1. Natural born citizens
Those who are citizens from birth without
having to perform any act to acquire or
perfect their Philippine citizenship
Native-born Filipinos
Those born in the Philippines. Natural-born
citizens may not be native-born if they were
born abroad
2.
Citizens by naturalization
Those who were formerly aliens but by
judicial, legislative, or administrative
process, have become Filipino citizens
Jus sanguinis
It is citizenship by blood
This is the rule that we
follow in the Philippines
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Conflict of Laws
Qualifications
Disqualifications
1.
2.
3.
4.
5.
6.
7.
8.
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Conflict of Laws
Loss of citizenship
Under Com. Act 63, as amended, a Filipino citizen may lose
his citizenship in any of the following ways:
1. By naturalization in a foreign country
2. By express renunciation of citizenship
3. By subscribing an oath of allegiance to support the
constitution or laws of a foreign country upon
attaining twenty-one years of age or more
4. By accepting commission in the military, naval, or
air service of a foreign country
5. By cancellation of the certificate of naturalization
6. By having been declared by competent authority, a
deserter of the Philippine armed forces in time of
war, unless subsequently a plenary pardon or
amnesty has been granted; and
7. In case of a woman, upon her marriage to a
foreigner, if, by virtue of the laws in force in her
husbands country, she acquires his nationality
Under the 1987 Constitution, however, the
woman retains her Philippine citizenship unless
by her act or omission she is deemed under
the law to have renounced her Philippine
citizenship
Philippine citizenship, how reacquired
Under C.A. 63, as amended, Philippine citizenship may be
reacquired as follows:
1. By naturalization, provided the applicant possesses
none of the disqualifications
2. By repatriation of deserters of the Army, Navy, or
Air Corps, Provided, that a woman who lost her
citizenship by reason of her marriage to an alien
may be repatriated in accordance with the
provisions of this Act after the termination of the
marital status
3. By direct act of Congress
RA 9225 Citizenship Retention and Reacquisition
Act of 2003
Under this law, natural born Filipino citizens who had been
naturalized in foreign countries are deemed to have
reacquired Philippine citizenship by taking an oath of
allegiance to the Philippine Constitution and laws. Those
who become naturalized in foreign countries after the
effectivity of the Act retain their Philippine citizenship upon
taking the same oath
Chapter 8
Domiciliary Theory
Domiciliary theory
It is the theory whereby the status, condition, family rights
and obligations, and capacity of a person are governed by
the law of his domicile or the lex domicilii
Domicile
It is the place where a person has his true, fixed,
permanent home, and principal establishment, and to
which, whenever he is absent, he has the intention of
returning.
Art. 50 of the CC: For the exercise of civil rights
and fulfillment of civil obligations, the domicile of
natural persons is the place of their habitual
residence
Domicile v. residence
Domicile
Residence
Denotes a fixed, permanent
Used to indicate a place of
residence to which, when
abode, whether permanent
absent, one has the
or temporary
intention of returning
Residence is not domicile, but domicile is residence coupled
with intention to remain for an unlimited time
Domicile v. citizenship
Domicile
Citizenship
Speaks of ones permanent
Indicates ties of allegiance
place of abode
and loyalty
A person may be a citizen or national of one sate and a
domiciliary of another
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If the child is
illegitimate
If the child is
legitimated
If the child is
adopted
If a foundling
Conflict of Laws
MARRIED WOMEN
1. The constructive
domicile of the wife is
the domicile of both
spouses, unless the law
allows the wife to have a
separate domicile for
valid and compelling
If the marriage is valid
reasons
2. If there is legal
separation between the
spouses, the wife can
have her own domicile of
choice
3. If there is a separation
de facto, the wife can
also have a separate
domicile
Apply the same rules when
If the marriage is
the marriage is valid.
voidable
However, after annulment,
the wife can freely select her
own domicile of choice
If the marriage is void
The wife can have a domicile
separate from the husband
OTHER PERSONS
Convict or prisoner
His domicile is the one he
had possessed prior to his
incarceration
Soldiers
Their domicile is their
domicile before their
enlistment
Public officials or
Their domicile is the one
employees abroad
they had before they were
(diplomats, etc)
assigned elsewhere, unless
they voluntarily adopt their
place of employment as their
permanent residence
Chapter 9
The situs or eclectic theory
Situs or eclectic theory
The capacity, status, and family relations of a person are
governed not necessarily by the law of his nationality or the
law of his domicile but by the law of the place (situs) where
an important element of the problem occurs or is situated
Two kinds of participation of an individual under the
situs or eclectic theory
1. If participation is active When he does an act
voluntarily, the governing law is the law of the
actual situs of the transaction or event
2. If the participation is passive When the
effects of the act are set forth or determined by
law, the governing law is the law of the legal
situs, i.e., the domicile of the individual concerned
Chapter 10
The problem of the renvoi
Renvoi
A French word which means refer back or
return
In Anglo-American countries, the term used is
remission, which means to refer a matter for
consideration or judgment
When does the problem of renvoi arise?
The problem of renvoi arises when there is doubt as to
whether the reference by the lex fori (the law of the country
where the problem arises) to the foreign law involves:
1. A reference to the internal law of the foreign law or
2. A reference to the entirety of the foreign law
including its conflicts rules
In such case, if the first state follows the
nationality theory, and the second state
follows the domiciliary theory, the problem
of renvoi will most probably arise
Four solutions the court can adopt when confronted
with a renvoi problem
Lesley Claudio (A 2012)
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1.
2.
3.
4.
Conflict of Laws
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Conflict of Laws
Marriage between a
Filipino and a
foreigner in the
PHILIPPINES
A Filipina who
marries an alien
husband
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Conflict of Laws
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2.
3.
4.
5.
Divorce
Absolute divorce, dissolves
the marriage and the parties
can marry again
Conflict of Laws
6.
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Conflict of Laws
2.
3.
4.
of wills
Intrinsic validity
Substance of wills
Concerns itself with:
1. Order of succession
2. Amount of
successional rights,
and other matters
of substance
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4.
Conflict of Laws
5.
6.
3.
4.
5.
Administrator
with a will
annexed
Appointed by
the court if
there is a will
but no executed
is designated
therein
Appointed by
the court if
there is no will
6.
Administrator
Ancillary
administration
Administration in other
countries where the
deceased also left
properties
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1.
2.
Conflict of Laws
Voluntary assignment or
transfer of credit
Other theories:
1.
The law of the
place where the
assignment is executed
2.
The law of the
place where
performance or
payment is normally
expected
3.
The national law
of the parties
Domicile of creditor
Goodwill of a business
Goodwill of business
Good will of business and
taxation thereon are
-Art. 521, NCC: property and
governed by the law of the
may be transferred together
place where the business
with the right to use the
is carried on
name under which the
business is conducted
Goodwill
-The patronage of any
established trade or business
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Conflict of Laws
Lex situs
Lex situs
Capacit
y of
parties
Lex
situs
Lex
situs
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Intrinsic
validity
Lex situs
Lex situs
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creates real
rights
Lease of
property: does
not create real
rights
Pledge, chattel
mortgage, real
estate
mortgage,
antichresis
Contract of loan:
mutuum
Contract of loan:
commodatum
Lease of service,
agency,
guaranty,
suretyship
Lex loci
celebratio
nis
Lex situs
Lex loci
celebratio
nis
Lex situs
Lex loci
celebratio
nis
Personal
law of
the
parties
Lex
situs
Lex
voluntatis
or lex loci
intentionis
Lex situs
Personal
law of
the
parties
Lex
stius
Personal
law of
parties
Lex loci
voluntatis
or lex loci
intentionis
Lex situs
Lex loci
volntatis
or lex loci
intentionis
Note: Agency to
alienate or
encumber real
property is
governed by lex
situs
Lex loci
Personal
Lex loci
celebratio
law of
voluntatis
nis
parties
Liability for loss, destruction,
deterioration of goods in transit:
law of destination of goods (Art.
1753, NCC)
Contract of
transportation
or carriage
(render
services)
Conflict of Laws
3.
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Tort v. Crime
Tort
Crime
Both are wrongs
Violates private rights
Committed against state
Instituted by injured
Prosecuted in the name of the
person against wrongdoer
State against the offender in
in civil case, the purpose of
criminal actions for the
which is indemnification for
purpose which are protection
damages suffered
and vindication of interests of
the public as a whole,
punishment of the offender,
the reformation of offender, or
to deter others from
committing the same act
Transitory in character
Local in character and can be
tortfeasor can be made
prosecuted only in the place
liable for his wrongful act
or states where the crimes
in any jurisdiction where
are committed
he may be found
Note: The determination of whether a wrongful act is a tort
or crime depends on the characterization of the act in the
state where said act is committed
Different theories that determine whether a state or a
legal system has jurisdiction to take cognizance of
criminal cases
Under this theory, the state where the
crime was committed has jurisdiction to
Territorial
try the case, and its penal code and the
theory
penalties described therein will apply
Subjective territorial principle
The state where the crime was begun may
prosecute the same, even if it was
completed in another state
Objective territorial principle
The state can prosecute crimes began
abroad but completed within its territory
Nationality or
personal
theory
Protective
theory
Real or
eclectic
theory
Cosmopolitan
or
universality
Conflict of Laws
theory
Passive
personality
or passive
nationality
theory
Corporation, defined
Sec. 2 of Corporation Code: An artificial being created by
operation of law, having the right of succession and the
powers, attributes, and properties expressly authorized by
law or incident to its existence
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Conflict of Laws
(b)
Domicile of a partnership
Art. 51 of NCC: The place where their legal representation is
established or where they exercise their principal functions
Chapter 20
RECOGNITION AND ENFORCEMENT OF FOREIGN
JUDGMENTS
Enforcement v. recognition
Enforcement of
Recognition of foreign
foreign judgment
judgment
Means that the plaintiff
Means that eh defendant or
or petitioner wants the
respondent is presenting the
court to positively carry
foreign judgment on the basis of
out and make effective
res judicata
the foreign judgment
Implies an act of
Involves merely a sense of
sovereignty
justice
Requires separate action
Being a matter of defense,
or proceeding brought
recognition needs no action or
precisely to make foreign proceeding but implies that an
judgment effective
action or proceeding has already
been filed against the defendant
who is invoking the foreign
judgment
Enforcement cannot
Recognition does not need or
exist without recognition
does not require enforcement
Reasons why a local court in the Philippines may
refuse to recognize or enforce a foreign judgment
1. The requisite proof of the foreign judgment may
not have been presented
The manner of proving a foreign judgment
is the same as proving a foreign law
2. The foreign judgment may contravene a recognized
and established policy in our country
3. The administration of justice in the country where
the judgment came from may be shockingly
corrupt or not beyond reproach
Conditions or requirements before a local court in the
Philippines can enforce or recognize a foreign
judgment
1. There must be adequate proof of the foreign
judgment
2. The judgment must be on a civil or commercial
matter, not on a criminal, revenue, or
administrative matter
3. There must be NO:
(1) Lack of jurisdiction
(2) Want of notice
(3) Collusion
(4) Clear mistake of law or fact
4. The foreign judgment must not contravene a sound
and established public policy of the forum
5. The judgment must be res judicata:
(1) The judgment must be final
(2) Foreign court must have jurisdiction over
subject matter and parties
(3) The judgment must be on the merits; and
(4) There was identity of parties, subject
matter, and cause of action
Effects of foreign judgments in the Philippines under
Rules of Court
Sec. 48, Rule 39, 1997 Rules on Civil Procedure provides:
The effect of foreign judgment or final order of a foreign
country, having jurisdiction to render the judgment or final
order is as follows:
(a)
In case of a judgment or final
order upon a specific thing, the judgment or final
order is conclusive upon the title to the thing and
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Rekititus of
Roger Pogi! =)