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CIVIL LAW MEMORY AID C O N F L I C T O F L A W S ATENEO CENTRAL BAR OPERATIONS 2002

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
2 Persons Dealt with by private individuals; Sovereign states and other
involved governs individuals in their entities possessing international
private transactions which personality, e.g., UN; governs
involve a foreign element states in their relationships
amongst themselves
3 Transactions Private transactions between Generally affected by public
involved private individuals interest; those in general are of
interest only to sovereign states
4 Remedies Resort to municipal tribunals May be peaceful or forcible
and 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
3. Special Laws
4. Treaties and Conventions
5. Judicial Decisions
6. International Customs
INDIRECT:
1. Natural moral law
2. 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

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CIVIL LAW MEMORY AID C O N F L I C T O F L A W S ATENEO CENTRAL BAR OPERATIONS 2002

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 MERCATORIA - 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

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2. Assume jurisdiction and apply either the law of the forum or of another state

a. 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:
i. A specific law of the forum decrees that internal law should apply
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

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

iii. 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

b. APPLY FOREIGN LAW - when properly pleaded and proved

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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 National law of the child (Article 15, CC)
person
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 Abroad

Between Filipinos 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
Between Foreigners Lex loci celebrationis EXCEPT if the
marriage is:
a. Highly immoral (like bigamous/
polygamous marriages)
b. Universally considered incestuous
(between brother-sister, and
ascendants-descendants)
Mixed Apply 1 (b) to uphold validity of marriage
Celebrated in RP

Between Foreigners 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 marriage Lex loci celebrationis (with prejudice to


by proxy is considered celebrated where the foregoing rules)
the proxy appears

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RULES ON MARRIAGE AS A STATUS

FACTUAL SITUATION POINT OF CONTACT


1 Personal rights & obligations between National of husband
husband & wife (Note: Effect of subsequent change of
nationality:
a. If both will have a new nationality –
the new one
b. If only one will change – the last
common nationality
c. 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)
Successional rights National law of decedent (Article 16 par.
Exceptions

2, CC)

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

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

Contracts where the real property is


The principal contract (usually loan) is
given as security 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)

Other means Law of the depot (storage place for


supplies or resting place)

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

Disposition or alienage of the goods 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 Where debtor may be effectively served
assignment of debts (garnishment) with summons (usually the domicile)
2 Voluntary assignment of debts Lex loci voluntatis or lex loci intentionis
(proper law of the contract)

OTHER THEORIES:
a. National law of the debtor or creditor
b. Domicile of the debtor or creditor
c. Lex loci celebrationis
d. 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 The right embodied in the instrument (for
instrument example, in the case of a Swedish bill of
exchange, Swedish law determines its
negotiability)
6 Validity of transfer, delivery or In general, situs of the instrument at the
negotiation of the instrument time of transfer, delivery or negotiation
7 Effect on a corporation of the sale of Law of the place incorporation
corporate shares
8 Effect between the parties of the sale of Lex loci voluntatis or lex loci intentionis
corporate shares (proper 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 Law of the place of incorporation
shares
10 Taxation on the income from the sale of Law of the place where the sale was
corporate shares consummated
11 Franchises Law of the place that granted them
12 Goodwill of the business & taxation Law of the place where the business is
thereto carried on
13 Patents, copyrights, trademarks, trade In the absence of a treaty, they are
names protected only by the state that granted
them
NOTE: 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

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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)

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 Lex loci actus (of the revocation) (Article.
829)
2 If done OUTSIDE the RP

a. By a NON-DOMICILIARY Lex loci celebrationis (of the making of


the will, NOT revocation), OR lex
domicilii (Article 829)

b. 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 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
2 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
1 Where appointed Place where domiciled at death or
incase of non-domiciliary, where assets
are found
2 Powers Co-extensive with the qualifying of the
appointing court – powers may only be
exercised within the territorial jurisdiction
of the court concerned
NOTE: these rules also apply to
principal, domiciliary, or ancillary
administrators & receivers even in non-
successive cases

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CIVIL LAW MEMORY AID C O N F L I C T O F L A W S ATENEO CENTRAL BAR OPERATIONS 2002

RULES ON OBLIGATION AND CONTRACTS

FACTUAL SITUATION POINT OF CONTACT


FORMAL OR EXTRINSIC VALIDITY Lex loci celebrationis (Article 17 {1})
Exceptions

a. Alienation & encumbrance of Lex situs (Article 16 [1])


property

b. Consular contracts Law of the RP (if made in RP


consulates)
CAPACITY OF CONTRACTING PARTIES 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
Exception

Alienation & encumbrance of property Lex situs (Article 16 {1})


INTRINSIC VALIDITY (INCLUDING INTERPRETATION OF THE Proper law of the contract – lex
INSTRUMENTS, AND AMT. OF DAMAGES FOR BREACH) contractus (in the broad sense),
meaning the lex voluntatis or lex loci
intentionis

OTHER THEORIES ARE:

a. Lex loci celebrationis (defect: this makes possible the evasion of the national law)

b. Lex nationalii (defect: this may impede commercial transactions)

c. Lex loci solutionis (law of the place of performance) (defect: there may be several
places of performance

d. Prof Minor’s solution:


i. Perfection – lex loci celebrationis
ii. Cause or consideration – lex loci considerations
iii.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 general Lex loci delicti (law of the place where the
delict was committed)
NOTE: The locus delicti (place of
commission of torts) is faced by the NOTE: liability for foreign torts may be
problem of characterization. In civil law enforced in the RP if:
countries, the locus delicti is generally a. The tort is not penal in character
where the act began; in common law b. If the enforcement of the tortious
countries, it is where the act first became liability won’t contravene our public
effective policy
c. 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)

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THEORIES AS TO WHAT COURT HAS JURISDICTION:

a. Territoriality theory – where the crime was committed

b. Nationality theory – country which the criminal is citizen or a subject

c. Real theory – any state whose penal code has been violated has jurisdiction, where
the crime was committed inside or outside its territory

d. Protective theory – any state whose national interests may be jeopardized has
jurisdiction so that it may protect itself

e. Cosmopolitan or universality theory – state where the criminal is found or which has
his custody has jurisdiction

f. 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, Where the victim was injured (not where
murder, infanticide & parricide the 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 Where the object of the crime was
representation received (not where the false
representations were made)
6 Conspiracy to commit treason, rebellion, Where the conspiracy was formed (not
or sedition where the overt act of treason, rebellion
NOTE: Other conspiracies are NOT or sedition was committed)
penalized by our laws
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

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CIVIL LAW MEMORY AID C O N F L I C T O F L A W S ATENEO CENTRAL BAR OPERATIONS 2002

Rules on Juridical Persons

FACTUAL SITUATION POINT OF CONTACT


Corporations
Powers and liabilities General rule: the law of the place of
incorporation

EXCEPTIONS:

a. 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

b. 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 Law of the place of incorporation
(requisites); kind of stocks, transfer of
stocks to bind the corporation, issuance,
amount & legality & dividends, powers &
duties of members, stockholders and
officers
Validity of corporate acts & contracts Law of the place of incorporation & law
(including ultra vires acts) of the place of performance (the act or
contract must be authorized by BOTH
laws)
Right to sue & amenability to court Lex fori
processes & 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:


a. Law of the place of incorporation (this is generally the RP rule)
b. Law of the place or center of management (center for administration or siege
social) (center office principle)
c. Law of the place of exploitation (exploitation 10enter or siege d’ exploitation)

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CIVIL LAW MEMORY AID C O N F L I C T O F L A W S ATENEO CENTRAL BAR OPERATIONS 2002

FACTUAL SITUATION POINT OF CONTACT

Partnerships
The existence or non-existence of legal The personal law of the partnership, i.e.,
personality of the firm; the capacity to the law of the place where it was
contract; liability of the firm & the created (Article 15 of the Code of
partners to 3rd persons Commerce) (Subject to the exceptions
given above as in the case of corps.)
Creation of branches in the RP; validity RP law (law of the place where
& effect of the branches’ commercial branches were created) (Article 15,
transaction; & the jurisdiction of the Code of Commerce)
court
Dissolution, winding up, & termination of RP law (Article 15, Code of Commerce)
branches 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 Personal law of the foundation (place of
OF INDIVIDUALS, USUALLY NOT FOR PROFIT) principal center of administration)

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