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Conflicts of Law Memory Aid
Conflicts of Law Memory Aid
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
1 Nature
2 Persons
involved
CONFLICT OF LAW
Municipal in character
Dealt with by private individuals;
governs individuals in their
private transactions which
involve a foreign element
3 Transactions
involved
4 Remedies
and Sanctions
LAW OF NATIONS
International in character
Sovereign states and other
entities possessing international
personality, e.g., UN; governs
states in their relationships
amongst themselves
Generally affected by public
interest; those in general are of
interest only to sovereign states
May be peaceful or forcible
Peaceful: includes diplomatic
negotiation, tender & exercise of
good offices, mediation, inquiry
& conciliation, arbitration,
judicial settlement by ICJ,
reference to regional agencies
Forcible: includes severance of
diplomatic relations, retorsions,
reprisals, embargo, boycott,
non-intercourse, pacific
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
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
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
POINT OF CONTACT
National law of the child (Article 15, CC)
Same
Same
Same
Same
Same
Lex fori (Article 43, 390, 391, CC; Rule
131 5 [jj], Rules of Court)
Celebrated in RP
Celebrated Abroad
Between Foreigners
Mixed
Between Foreigners
Mixed
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 marriages
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)
Apply 1 (b) to uphold validity of marriage
National law (Article 21, FC) PROVIDED
the marriage is not highly immoral or
universally considered incestuous)
National law of Filipino (otherwise public
policy may be militated against)
POINT OF CONTACT
National of husband
(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)
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)
Exceptions
RULES ON PROPERTY
FACTUAL SITUATION
REAL PROPERTY
Successional rights
POINT OF CONTACT
Lex rei sitae (Article 16, CC)
National law of decedent (Article 16 par.
2, CC)
Capacity to succeed
2 MEANS OF TRANSPORTATION
Vessels
Other means
FACTUAL SITUATION
INTANGIBLE PERSONAL PROPERTY
(CHOSES IN ACTION)
1 Recovery of debts or involuntary
assignment of debts (garnishment)
2 Voluntary assignment of debts
3
4
5
6
7
8
9
10
11
12
13
POINT OF CONTACT
Where debtor may be effectively served
with summons (usually the domicile)
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
Taxation of debts
Domicile of creditor
Administration of debts
Lex situs of assets of the debtor (for
these assets can be held liable for the
debts)
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)
Validity of transfer, delivery or
In general, situs of the instrument at the
negotiation of the instrument
time of transfer, delivery or negotiation
Effect on a corporation of the sale of
Law of the place incorporation
corporate shares
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)
Taxation on the dividends of corporate
Law of the place of incorporation
shares
Taxation on the income from the sale of
Law of the place where the sale was
corporate shares
consummated
Franchises
Law of the place that granted them
Goodwill of the business & taxation
Law of the place where the business is
thereto
carried on
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
FACTUAL SITUATION
EXTRINSIC VALIDITY OF JOINT WILLS (MADE IN
THE SAME INSTRUMENT)
1 Made by Filipinos abroad
2 Made by aliens abroad
3 Made by aliens in the RP
POINT OF CONTACT
Lex nationalii (void, even if valid where
made) (Article 819)
Valid if valid according to lex domicilii or
lex loci celebrationis (Article 819)
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
Lex nationalii of the deceased
regardless of the LOCATION & NATURE
of the property (Article 16 (2))
Lex nationalii of the deceased not of
the heir (Article 1039)
Lex loci actus (of the revocation) (Article.
829)
b. By a DOMICILIARY of the RP
POINT OF CONTACT
Lex loci celebrationis (Article 17 {1})
b. Consular contracts
Exception
Alienation & encumbrance of property
INTRINSIC VALIDITY (INCLUDING INTERPRETATION
OF THE INSTRUMENTS, AND AMT. OF DAMAGES
FOR BREACH)
RULES ON CRIMES
FACTUAL SITUATION
ESSENTIAL ELEMENTS OF A CRIME AND
PENALTIES
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:
a. The tort is not penal in character
b. If the enforcement of the tortious
liability wont contravene our public
policy
c. If our judicial machinery is adequate for
such enforcement
POINT OF CONTACT
Generally where committed (locus regit
actum)
POINT OF CONTACT
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 cant 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)
Law of the place of incorporation