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).
3.
DISTINGUISHED FROM PUBLIC INTERNATIONAL LAW

BASIS CONFLICT OF LAW LAW OF NATIONS

1
Nature Municipal in character International in character

Dealt with by private

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

Private transactions
3 Transactions between private Generally affected by public interest; those in general are of
involved 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,
Remedies
4 and Resort to municipal pacific blockades, collective measures under the UN Charter,
Sanctions tribunals 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 [jj],
Presumptive death & survivorship 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 & incestuous marriages) & consular
Between Filipinos marriages

Lex loci celebrationis EXCEPT if the marriage is:

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

National law (Article 21, FC) PROVIDED the marriage is not

Celebrated Between Foreigners highly immoral or universally considered incestuous)

in RP National law of Filipino (otherwise public policy may be

Mixed militated against)

Marriage by proxy (NOTE: a

marriage by proxy is considered
celebrated where the proxy
appears Lex loci celebrationis (with prejudice to the 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
1 Personal rights & obligations 3. If no common nationality – nationality of husband at the time of
between husband & wife wedding)

National law of husband without prejudice to what the CC provides

concerning REAL property located in the RP (Article 80)
2 Property relations bet husband & (NOTE: Change of nationality has NO EFFECT. This is the DOCTRINE
wife OF IMMUTABILITY IN THE 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 property

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

The principal contract (usually loan) is governed by the proper

Contracts where the real
Exceptions property is given as security
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)

EXCEPTION: same as those for real property EXCEPT that

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

Means of Transportation

Vessels Law of the flag (or in some cases, place of registry)

2
Other means Law of the depot (storage place for supplies or resting place)

Things in transitu (these things

have a changing status because
they move)

Loss, destruction, deterioration Law of the destination (Article. 1753, CC)

3
Validity & effect of the seizure of Locus regit actum (where seized) – because said place is
 the goods their temporary situs

Disposition or alienage of the Lex loci volutantis or lex loci intentionis– because here there
goods is a contract

FACTUAL SITUATION POINT OF CONTACT

INTangIBLE PERSONAL PROPERTY

(CHOSES IN ACTION)

Recovery of debts or involuntary

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

2
Voluntary assignment of debts Lex loci voluntatis or lex loci intentionis(proper law of 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 held liable for
Administration of debts the debts)

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

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

7 Effect on a corporation of the

sale of corporate shares Law of the place incorporation

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

9 Taxation on the dividends of

corporate shares Law of the place of incorporation

10 Taxation on the income 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
13 Patents, copyrights, trademarks, and trade names in the RP ONLY IF Filipinos are granted reciprocal
trade names concessions in 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, CC), OR lex loci
Made by an alien abroad 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 celebrationis (Article

Made by aliens abroad 819)

Lex loci celebrationis therefore void even if apparently allowed by Article

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

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

2 1. By a DOMICILIARY of the
RP Lex domicilii (RP law) OR lex loci actus (of the revocation) (Article 17)

Probate of Wills Made Abroad

1 Lex fori of the RP applies as to the procedural aspects, i.e., the will
If not yet probated abroad 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 execution, generally it is
2 enough to ask for the enforcement here of the foreign judgment on the
If already probated abroad probate abroad

Executors and Administrators

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

Where appointed assets are found

Co-extensive with the qualifying of the appointing court – powers may

only be exercised within the territorial jurisdiction of the court
2 concernedNOTE: these rules also apply to principal, domiciliary, or
Powers 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])

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 theory of lex
Capacity of Contracting Parties loci celebrationis

Exception

Alienation & encumbrance of

property Lex situs (Article 16 {1})

Intrinsic validity (including

interpretation of the instruments, and Proper law of the contract – lex contractus(in the broad sense), meaning
amt. of damages for breach) 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 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

Lex loci delicti (law of the place where the delict was
committed)NOTE: liability for foreign torts may be
enforced in the RP if:
Liability & damages for torts in 1. The tort is not penal in character
generalNOTE: The locus delicti (place of commission 2. If the enforcement of the tortious liability won’t
of torts) is faced by the problem of characterization. In
contravene our public policy
civil law countries, the locus delicti is generally where
the act began; in common law countries, it is where 3. If our judicial machinery is adequate for such
the act first became effective 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,
1 homicide, murder, infanticide & Where the victim was injured (not where the aggressor wielded his
parricide weapon)

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

3
Bigamy Where the illegal marriage was performed
4 Where the property was unlawfully taken from the victim (not the
Theft & robbery place to which the criminal went after the commission of the crime)

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

Conspiracy to commit treason,

rebellion, or
seditionNOTE: Other
6 conspiracies are NOT penalized Where the conspiracy was formed (not where the overt act of
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 the
Powers and liabilities 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 Law of the place of incorporation & law of the place of performance
vires acts) (the act or contract must be authorized by BOTH laws)

Right to sue & amenability to

court processes & suits against it Lex fori

Law of the place of incorporation provided that the public policy of the
Manner & effect of dissolution forum is not militated against

If not fixed by the law creating or recognizing the corporation or by any

Domicile other provision – the domicile is where it is legal representation is
 established or where it exercises its principal functions (Article. 15)

Principal receiver is appointed by the courts of the state of

incorporation; ancillary receivers, by the courts of any state where the
Receivers (appointment & corporation has assets (authority is CO-EXTENSIVE) w/ the authority
powers) 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 The personal law of the partnership, i.e., the law of the place where it
of the firm & the partners to was created (Article 15 of the Code of Commerce) (Subject to the
3rd persons exceptions given above as in the case of corps.)

Creation of branches in the RP;

validity & effect of the branches’
commercial transaction; & the RP law (law of the place where branches were created) (Article 15,
jurisdiction of the 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
Domicile established or where it exercises its principal functions (Article. 15)

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

Receivers exercised as such only in the RP

Foundations (combination of capital

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