Civil Law – Conflict of Laws

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

Nature Municipal in character International in character

1

Persons Dealt with by private Sovereign states and other

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

Transactions Private transactions between Generally affected by public

3 involved private individuals interest; those in general are of
interest only to sovereign
states

Remedies Resort to municipal tribunals May be peaceful or forcible

4 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

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 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

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

1. 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 created 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

Beginning of personality of natural National law of the child (Article 15, CC)
1 person

Ways & effects of emancipation Same

2

Age of majority Same

3

Use of names and surnames Same

4
 Use of titles of nobility Same
5

Absence Same
6

Presumptive death & survivorship Lex fori (Article 43, 390, 391, CC; Rule 131
7 §5 [jj], Rules of Court)

Rules on Marriage as a Contract

FACTUAL SITUATION POINT OF CONTACT

Between Filipinos Lex loci celebrationis is without

Celebrated prejudice to the exceptions under
Abroad 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

Between Foreigners National law (Article 21, FC) PROVIDED

Celebrated the marriage is not highly immoral or
in RP universally considered incestuous)

Mixed National law of Filipino (otherwise

public policy may be militated against)

Marriage by proxy (NOTE: a Lex loci celebrationis (with prejudice to

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

Rules on Marriage as a Status

 FACTUAL SITUATION
Personal rights & obligations between
1 husband & wife
Property relations bet husband & wife
2 prejudice to what the CC provides
Rules on Property
FACTUAL SITUATION
Real property
Successional rights
Exceptions
Capacity to succeed
Contracts involving real property
which do not deal with the title
thereto
Contracts where the real property
is given as security
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
3. If no common nationality –
nationality of husband at the time
of wedding)
National law of husband without
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)
POINT OF CONTACT
Lex rei sitae (Article 16, CC)
National law of decedent (Article 16
par. 2, CC)
National law of decedent (Article.
1039)
The law intended will be the proper
law of the contract (lex loci
voluntantis or lex loci 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 (for lack of proper
cause or consideration), although
by itself, the mortgage could have
been valid.

Tangible personal property (choses in possession)

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

1

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

Means of Transportation
2
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)

Things in transitu (these things

3 have a changing status because
they move)

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

CC)

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

Disposition or alienage of the Lex loci volutantis or lex loci

goods intentionis– because here there is a
contract

FACTUAL SITUATION POINT OF CONTACT

INTangIBLE PERSONAL PROPERTY (CHOSES

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

Voluntary assignment of debts Lex loci voluntatis or lex loci

2 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
Taxation of debts Domicile of creditor
3

Administration of debts Lex situs of assets of the debtor (for

4 these assets can be held liable for the
debts)

Negotiability or non-negotiability of an The right embodied in the instrument

5 instrument (for example, in the case of a Swedish
bill of exchange, Swedish law
determines its negotiability)

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

6 negotiation of the instrument the time of transfer, delivery or
negotiation

Effect on a corporation of the sale of Law of the place incorporation

7 corporate shares

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

Taxation on the dividends of corporate Law of the place of incorporation

9 shares

Taxation on the income from the sale of Law of the place where the sale was
10 corporate shares consummated

Franchises Law of the place that granted them

11

Goodwill of the business & taxation Law of the place where the business is
12 thereto carried on
 Patents, copyrights, trademarks, trade In the absence of a treaty, they are
13 names 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

Made by an alien abroad Lex nationalii OR lex domicilii OR RP law

1 (Article 816, CC), OR lex loci
celebrationis(Article 17(1))

Made by a Filipino abroad Lex nationalii OR lex loci

2 celebrationis(Article 815)

Made by an alien in the RP Lex nationalii OR lex loci

3 celebrationis(Article 817)

FACTUAL SITUATION POINT OF CONTACT

Extrinsic Validity of Joint Wills (made in the

same instrument)

Made by Filipinos abroad Lex nationalii (void, even if valid where

1 made) (Article 819)

Made by aliens abroad Valid if valid according to lex

2 domicilii or lex loci celebrationis (Article
819)

Made by aliens in the RP Lex loci celebrationis therefore void

3 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

If done in the RP Lex loci actus (of the revocation)

1 (Article. 829)

If done OUTSIDE the RP

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

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

If not yet probated abroad Lex fori of the RP applies as to the

1 procedural aspects, i.e., the will must be
fully probated here & due execution
must be shown

If already probated abroad Lex fori of the RP again applies as to the

2 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

Where appointed Place where domiciled at death or

1 incase of non-domiciliary, where assets
are found

Powers Co-extensive with the qualifying of the

2 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
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 Lex situs (Article 16 [1])

property

1. 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 Proper law of the contract – lex

the instruments, and amt. of damages for contractus(in the broad sense), meaning
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

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

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

Attempted homicide, etc. Where the intended victim was (not

2 where the aggressor was situated) – so
long as the weapon or the bullet either
touched him or fell inside the territory
where he was

Bigamy Where the illegal marriage was

3 performed

Theft & robbery Where the property was unlawfully

4 taken from the victim (not the place to
which the criminal went after the
 commission of the crime)

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

Conspiracy to commit treason, Where the conspiracy was formed (not

6 rebellion, or seditionNOTE: Other where the overt act of treason, rebellion
conspiracies are NOT penalized by our or sedition was committed)
laws

Libel Where published or circulated

7

Continuing crime Any place where the offense begins,

8 exists or continues

Complex crime Any place where any of the essential

9 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

Formation of the corporation
(requisites); kind of stocks, transfer of
stocks to bind the corporation,
incorporation EXCEPTIONS:
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
corporation is an enemy
(CONTROL TEST)
Law of the place of incorporation
 issuance, amount & legality &
dividends, powers & duties of
members, stockholders and officers
Validity of corporate acts & contracts
(including ultra vires acts)
Right to sue & amenability to court
processes & suits against it
Manner & effect of dissolution
Domicile
Receivers (appointment & powers)
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
Creation of branches in the RP; validity
& effect of the branches’ commercial
transaction; & the jurisdiction of the
court
Dissolution, winding up, & termination
of branches in the RP
Law of the place of incorporation & law
of the place of performance (the act or
contract must be authorized by BOTH
laws)
Lex fori
Law of the place of incorporation
provided that the public policy of 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. 15)
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
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.)
RP law (law of the place where
branches were created) (Article 15,
Code of Commerce)
RP law (Article 15, Code of Commerce)
 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 Personal law of the foundation (place of

independent of individuals, usually not for principal center of administration)
profit)

Reference:

Civil Law (Conflict of Laws) Memory Aid

Ateneo Central Bar Operations 2001