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

Sovereign states and other

Dealt with by private individuals; entities possessing international
governs individuals in their private personality, e.g., UN; governs
2 Persons transactions which involve a foreign states in their relationships
involved element amongst themselves

Generally affected by public

3 Transactions Private transactions between interest; those in general are of
involved private individuals interest only to sovereign states

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
Remedies
4 and blockades, collective measures
Sanctions Resort to municipal tribunals 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 one’s 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
give protection 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 Lex fori (Article 43, 390, 391, CC; Rule 131 §5

Presumptive death & survivorship [jj], Rules of Court)

Rules on Marriage as a Contract

FACTUAL SITUATION 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 &
Between Filipinos incestuous marriages) & consular marriages

Lex loci celebrationis EXCEPT if the marriage is:

1. Highly immoral (like bigamous/
polygamous marriages)
2. Universally considered incestuous
(between brother-sister, and ascendants-
Celebrated
Between Foreigners descendants)
Abroad
Mixed Apply 1 (b) to uphold validity of marriage

National law (Article 21, FC) PROVIDED the

marriage is not highly immoral or universally
Between Foreigners considered incestuous)
Celebrated
in RP National law of Filipino (otherwise public policy
Mixed may be militated against)

Marriage by proxy (NOTE:

a marriage by proxy is
considered celebrated Lex loci celebrationis (with prejudice to the
where the proxy appears foregoing rules)
Rules on Marriage as a Status
FACTUAL SITUATION POINT OF CONTACT

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
Personal rights &
1 obligations between 3. If no common nationality – nationality of husband at
husband & wife the time of wedding)

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.
2 Property relations bet This is the DOCTRINE OF IMMUTABILITY IN THE
husband & wife MATRIMONIAL PROPERTY REGIME)

Rules on Property
FACTUAL SITUATION POINT OF CONTACT

Real property Lex rei sitae (Article 16, CC)

Successional rights National law of decedent (Article 16 par. 2, CC)

Capacity to succeed National law of decedent (Article. 1039)

Contracts involving real The law intended will be the proper law of the
property which do not contract (lex loci voluntantis or lex loci
deal with the title thereto intentionis)

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
Contracts where the real (for lack of proper cause or consideration),
property is given as although by itself, the mortgage could have
Exceptions security been valid.

Tangible personal property (choses in possession)

1
In General Lex rei sitae (Article. 16, CC)

EXCEPTION: same as those for real property

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

Law of the flag (or in some cases, place of

Vessels registry)

2 Law of the depot (storage place for supplies or

Other means resting place)

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 Locus regit actum (where seized) – because said
seizure of the goods place is their temporary situs

3 Disposition or alienage of Lex loci volutantis or lex loci intentionis–

the goods because here there is a contract

FACTUAL SITUATION POINT OF CONTACT

INTangIBLE PERSONAL PROPERTY

(CHOSES IN ACTION)

Recovery of debts or
1 involuntary assignment of Where debtor may be effectively served with summons
debts (garnishment) (usually the domicile)

2 Voluntary assignment of Lex loci voluntatis or lex loci intentionis(proper law of

debts 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 Lex situs of assets of the debtor (for these assets can be

Administration of debts held liable for the debts)
 Negotiability or non- The right embodied in the instrument (for example, in
5 negotiability of an the case of a Swedish bill of exchange, Swedish law
instrument determines its negotiability)

Validity of transfer,
6 delivery or negotiation of In general, situs of the instrument at the time of
the instrument transfer, delivery or negotiation

Effect on a corporation of
7 the sale of corporate
shares Law of the place incorporation

Effect between the Lex loci voluntatis or lex loci intentionis (proper law of
8 parties of the sale of the contract) – for this is really a contract; usually this is
corporate shares the place where the certificate is delivered)

9 Taxation on the dividends

of corporate shares Law of the place of incorporation

Taxation on the income

10 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

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
13 Patents, copyrights, ONLY IF Filipinos are granted reciprocal concessions in
trademarks, trade names the state of the foreigners
Wills, Succession & Administration of Conflict Rules
FACTUAL SITUATION POINT OF CONTACT

Extrinsic Validity of Wills

1 Lex nationalii OR lex domicilii OR RP law (Article 816,

Made by an alien abroad 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 Valid if valid according to lex domicilii or lex loci

Made by aliens abroad celebrationis (Article 819)

Lex loci celebrationis therefore void even if apparently allowed

3 by Article 817 because the prohibition on joint wills is a clear
Made by aliens in the RP expression of public policy

Lex nationalii of the deceased – regardless of the LOCATION &

Intrinsic Validity of Wills 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

2 1. By a NON- Lex loci celebrationis (of the making of the will, NOT
DOMICILIARY revocation), OR lex domicilii(Article 829)
 1. By a DOMICILIARY of Lex domicilii (RP law) OR lex loci actus (of the revocation)
the RP (Article 17)

Probate of Wills Made Abroad

1 Lex fori of the RP applies as to the procedural aspects, i.e., the

If not yet probated abroad will must be fully probated here & due execution must be shown

Lex fori of the RP again applies as to the procedural aspects;

must also be probated here, but instead of proving due
2 execution, generally it is enough to ask for the enforcement here
If already probated abroad of the foreign judgment on the probate abroad

Executors and Administrators

1 Place where domiciled at death or incase of non-domiciliary,

Where appointed where assets are found

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,
2 domiciliary, or ancillary administrators & receivers even in non-
Powers 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)

National law (Article 15) without prejudice to the case of Insular

Government v Frank 13 P 236, where the SC adhered to the
Capacity of Contracting Parties theory of lex loci celebrationis

Exception

Alienation & encumbrance

of property Lex situs (Article 16 {1})

Intrinsic validity (including Proper law of the contract – lex contractus(in the broad sense),
interpretation of the meaning the lex voluntatis or lex loci intentionis
 instruments, and amt. of
damages for breach)

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 Minor’s 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
generalNOTE: The locus
delicti (place of commission
of torts) is faced by the
problem of Lex loci delicti (law of the place where the delict was
characterization. In civil committed)NOTE: liability for foreign torts may be enforced in the
law countries, the locus RP if:
delicti is generally where 1. The tort is not penal in character
the act began; in common
2. If the enforcement of the tortious liability won’t contravene
law countries, it is where
the act first became our public policy
effective 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

Frustrated an
consummated, homicide,
1 murder, infanticide & Where the victim was injured (not where the aggressor wielded
parricide his weapon)

Where the intended victim was (not where the aggressor was
2 situated) – so long as the weapon or the bullet either touched
Attempted homicide, etc. him or fell inside the territory where he was

3
Bigamy Where the illegal marriage was performed

Where the property was unlawfully taken from the victim (not
4 the place to which the criminal went after the commission of the
Theft & robbery crime)

5 Estafa or swindling thru Where the object of the crime was received (not where the false
false representation representations were made)

Conspiracy to commit
treason, rebellion, or
seditionNOTE: Other
6 conspiracies are NOT Where the conspiracy was formed (not where the overt act of
penalized by our laws 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 Any place where any of the essential elements of the crime took
Complex crime place
Rules on Juridical Persons
FACTUAL SITUATION POINT OF CONTACT

Corporations

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 can’t 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
Powers and liabilities 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,
3.stockholders and officers Law of the place of incorporation

Validity of corporate acts

& contracts Law of the place of incorporation & law of the place of performance
(including ultra vires acts) (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 Law of the place of incorporation provided that the public policy of
dissolution the forum is not militated against

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.
Domicile 15)

Principal receiver is appointed by the courts of the state of

incorporation; ancillary receivers, by the courts of any state where
Receivers (appointment & the corporation has assets (authority is CO-EXTENSIVE) w/ the
powers) 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 RP law (law of the place where branches were created) (Article 15,
court Code of Commerce)

Dissolution, winding up, &

termination of branches
in the RP RP law (Article 15, Code of Commerce)

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.
Domicile 15)

RP law insofar as the assets in the RP are concerned can be exercised

Receivers as such only in the RP

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