Civil Law Conflict of Laws

Dec 20

Posted by Magz

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

3 Transactions Private transactions between private Generally affected by public interest;

involved individuals those in general are of interest only to
sovereign states
4 Remedies and Resort to municipal tribunals May be peaceful or forcible
Sanctions
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
blockades, collective measures 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 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 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 Presumptive death & survivorship Lex fori (Article 43, 390, 391, CC; Rule 131 5 [jj],
Rules of Court)

Rules on Marriage as a Contract

FACTUAL SITUATION POINT OF CONTACT

Celebrated Between Filipinos Lex loci celebrationis is without prejudice to the
Abroad exceptions under Articles 25, 35 (1, 4, 5 & 6),
36, 37 & 38 of the Family Code (bigamous &
incestuous marriages) & consular marriages

Between Foreigners Lex loci celebrationis EXCEPT if the marriage

is:

1. Highly immoral (like bigamous/

polygamous marriages)
2. Universally considered incestuous
(between brother-sister, and ascendants-
descendants)

Mixed Apply 1 (b) to uphold validity of marriage

Celebrated Between Foreigners National law (Article 21, FC) PROVIDED the
in RP 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 marriage by proxy Lex loci celebrationis (with prejudice to the
is considered celebrated where the proxy foregoing rules)
appears

Rules on Marriage as a Status

FACTUAL SITUATION POINT OF CONTACT

1 Personal rights & obligations between National of husband(Note: Effect of subsequent change of
husband & wife nationality:

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 POINT OF CONTACT

Real property Lex rei sitae (Article 16, CC)
Exceptions 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 The law intended will be the proper law of the
deal with the title thereto
Contracts where the real property is given as The principal contract (usually loan) is governed
security
Tangible personal property (choses in possession)
1 In General
Exceptions: same as those for real property
2 Means of Transportation
Vessels
Other means
3 Things in transitu (these things have a
changing status because they move)
Loss, destruction, deterioration
Validity & effect of the seizure of the goods
Disposition or alienage of the goods
contract (lex loci voluntantis or lex loci
intentionis)
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.
Lex rei sitae (Article. 16, CC)
EXCEPTION: same as those for real property
EXCEPT that in the example concerning
mortgage, the same must be changed to pledge of
personal property)
Law of the flag (or in some cases, place of
registry)
Law of the depot (storage place for supplies or
resting place)
Law of the destination (Article. 1753, CC)
Locus regit actum (where seized) because said
place is their temporary situs
Lex loci volutantis or lex loci intentionis
because here there is a contract

FACTUAL SITUATION POINT OF CONTACT

INTangIBLE PERSONAL PROPERTY (CHOSES IN
ACTION)
1 Recovery of debts or involuntary assignment of Where debtor may be effectively served with
debts (garnishment) summons (usually the 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 Administration of debts Lex situs of assets of the debtor (for these assets
can be held liable for the debts)
5 Negotiability or non-negotiability of an instrument The right embodied in the instrument (for example,
in the case of a Swedish bill of exchange, Swedish
law determines its negotiability)
6 Validity of transfer, delivery or negotiation of the In general, situs of the instrument at the time of
instrument transfer, delivery or negotiation
7 Effect on a corporation of the sale of corporate Law of the place incorporation
shares
8 Effect between the parties of the sale of corporate Lex loci voluntatis or lex loci intentionis (proper
shares law of the contract) for this is really a contract;
usually this is the place where the certificate 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 Law of the place where the sale was consummated
shares
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
13 Patents, copyrights, trademarks, trade names 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 Made by an alien abroad Lex nationalii OR lex domicilii OR RP law (Article
816, 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 Made by aliens abroad Valid if valid according to lex domicilii or lex loci
celebrationis (Article 819)
3 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 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
2 If done OUTSIDE the RP
1. By a NON-DOMICILIARY
1. By a DOMICILIARY of the RP
Probate of Wills Made Abroad
1 If not yet probated abroad
2 If already probated abroad
Executors and Administrators
1 Where appointed
2 Powers
Rules on Obligation and Contracts
FACTUAL SITUATION
Formal or Extrinsic Validity
Exceptions
1. Alienation & encumbrance of property
1. Consular contracts
Capacity of Contracting Parties
Exception
Alienation & encumbrance of property
Intrinsic validity (including interpretation of the
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 Minors solution:
5. Perfection lex loci celebrationis
6. Cause or consideration lex loci considerations
Lex loci actus (of the revocation) (Article. 829)
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)
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
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
Place where domiciled at death or incase of non-
domiciliary, 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, domiciliary, or
ancillary administrators & receivers even in non-
successive cases
POINT OF CONTACT
Lex loci celebrationis (Article 17 {1})
Lex situs (Article 16 [1])
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 loci
celebrationis
Lex situs (Article 16 {1})
Proper law of the contract lex contractus (in the
broad sense), meaning the lex voluntatis or lex loci
intentionis
 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 Lex loci delicti (law of the place where the delict was
locus delicti (place of commission of torts) is faced by committed)NOTE: liability for foreign torts may be
the problem of characterization. In civil law countries, enforced in the RP if:
the locus delicti is generally where the act began; in
common law countries, it is where the act first became 1. The tort is not penal in character
effective 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 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

1 Frustrated an consummated, homicide, murder, Where the victim was injured (not where the
infanticide & parricide aggressor wielded his weapon)
2 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
3 Bigamy Where the illegal marriage was performed
4 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)

5 Estafa or swindling thru false representation Where the object of the crime was received (not
where the false representations were made)
 6 Conspiracy to commit treason, rebellion, or Where the conspiracy was formed (not where the
seditionNOTE: Other conspiracies are NOT overt act of treason, rebellion or sedition was
penalized by our laws committed)
7 Libel Where published or circulated
8 Continuing crime Any place where the offense begins, exists or
continues
9 Complex crime Any place where any of the essential elements of the
crime took place

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 Law of the place of incorporation

stocks, transfer of stocks to bind the corporation,
issuance, amount & legality & dividends, powers
& duties of members, stockholders and officers
Validity of corporate acts & contracts (including Law of the place of incorporation & law of the
ultra vires acts) place of performance (the act or contract must be
authorized by BOTH laws)
Right to sue & amenability to court processes & Lex fori
suits against it
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 The personal law of the partnership, i.e., the law of
of the firm; the capacity to contract; liability of the the place where it was created (Article 15 of the
firm & the partners to 3rd persons Code of Commerce) (Subject to the exceptions
 given above as in the case of corps.)
Creation of branches in the RP; validity & effect of RP law (law of the place where branches were
the branches commercial transaction; & the created) (Article 15, Code of Commerce)
jurisdiction of the court
Dissolution, winding up, & termination of branches RP law (Article 15, Code of Commerce)
in the RP
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 Personal law of the foundation (place of principal
individuals, usually not for profit) center of administration)