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

Nature

Persons
involved

Transactions
involved

CONFLICT OF LAW

LAW OF NATIONS

Municipal in character

International in character

Dealt with by private

individuals; governs
individuals in their private
transactions which involve a
foreign element

Sovereign states and other

entities possessing
international personality, e.g.,
UN; governs states in their
relationships amongst
themselves

Private transactions between

private individuals

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,

Remedies
and
Sanctions

reprisals, embargo, boycott, nonintercourse, pacific blockades,

Resort to municipal tribunals

SOURCES:
Direct:

1. Constitutions
2. Codifications
1.
2.
3.
4.

Special Laws
Treaties and Conventions
Judicial Decisions
International Customs

Indirect:
1. Natural moral law
1.

Work of writers

collective measures under the UN

Charter, and war.

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
giveprotection 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

Beginning of personality of natural

person

National law of the child (Article 15, CC)

Ways & effects of emancipation

Same

Age of majority

Same

Use of names and surnames

Same

Use of titles of nobility

Same

Absence

Same

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

Between Filipinos
Celebrat
ed

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

Abroad

Between Foreigners

Lex loci celebrationis EXCEPT if

the marriage is:
1. Highly immoral (like
bigamous/ polygamous
marriages)
2. Universally considered
incestuous (between brothersister, and ascendantsdescendants)

Mixed

Apply 1 (b) to uphold validity of

marriage

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 by proxy is considered
celebrated where the proxy appears

Lex loci celebrationis (with

prejudice to the foregoing rules)

Celebrat
ed in RP

Rules on Marriage as a Status

FACTUAL SITUATION

POINT OF CONTACT

Personal rights & obligations between

husband & wife

National of husband(Note: Effect of

subsequent change of nationality:
If both will have a new nationality the
new one
If only one will change the last
common nationality
If no common nationality nationality of
husband at the time of wedding)

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)

Exceptio
ns

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
thereto

The law intended will be the

proper law of the contract (lex loci
voluntantis orlex 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.

Contracts where the real property

is given as security
Tangible personal property (choses in possession)
1

In General

Lex rei sitae (Article. 16, CC)

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

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

have a changing status because
they move)

Loss, destruction, deterioration

Law of the destination (Article.

1753, CC)

Validity & effect of the seizure of

the goods

Locus regit actum (where seized)

because said place is their
temporarysitus

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)

Recovery of debts or involuntary

assignment of debts (garnishment)

Where debtor may be effectively

served with summons (usually the
domicile)

Voluntary assignment of debts

Lex loci voluntatis or lex loci

intentionis(proper law of the contract)

Other Theories:
National law of the debtor or creditor
Domicile of the debtor or creditor
Lex loci celebrationis
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 instrument

The right embodied in the instrument

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

Validity of transfer, delivery or

negotiation of the instrument

In general, situs of the instrument at

the time of transfer, delivery or
negotiation

Effect on a corporation of the sale of

corporate shares

Law of the place incorporation

Effect between the parties of the sale

of corporate shares

Lex loci voluntatis or lex loci

intentionis (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 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

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

13

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

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

Made by a Filipino abroad

Lex nationalii OR lex loci

celebrationis(Article 815)
3

Made by an alien in the RP

FACTUAL SITUATION

Lex nationalii OR lex loci

celebrationis(Article 817)

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)

Made by aliens abroad

Valid if valid according to lex domicilii orlex

loci celebrationis (Article 819)

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)

If done OUTSIDE the RP

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 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

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
1

Place where domiciled at death or incase of nondomiciliary, 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 nonsuccessive cases

Powers

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
loci celebrationis

Capacity of Contracting Parties

Exception
Alienation & encumbrance of property

Lex situs (Article 16 {1})

Intrinsic validity (including interpretation of the

instruments, and amt. of damages for breach)

Proper law of the contract lex contractus(in

the broad sense), meaning 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 Minors 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

generalNOTE: The locus delicti (place of
commission of torts) is faced by the
problem of characterization. In civil law
countries, the locus delicti is generally
where the act began; in common law
countries, it is where the act first became
effective

Lex loci delicti (law of the place where

the delict was committed)NOTE: liability
for foreign torts may be enforced in the
RP if:
1. The tort is not penal in character
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

Essential elements of a crime and penalties

POINT OF CONTACT

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, infanticide & parricide

Where the victim was injured (not where the

aggressor wielded his weapon)

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

Bigamy

Where the illegal marriage was performed

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)

Estafa or swindling thru false representation

Where the object of the crime was received

(not where the false representations were made)

Conspiracy to commit treason, rebellion, or

seditionNOTE: Other conspiracies are NOT
penalized by our laws

Where the conspiracy was formed (not where

the overt act of treason, rebellion or sedition
was committed)

Libel

Where published or circulated

Continuing crime

Any place where the offense begins, exists or

continues

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 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 vires acts)

Law of the place of incorporation & law of

the place of performance (the act or contract
must be authorized by BOTH laws)

Right to sue & amenability to court processes

& suits against it

Lex fori

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 COEXTENSIVE) 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 of the firm; the capacity to
contract; liability of the firm & the partners to
3 persons

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.)

Creation of branches in the RP; validity &

effect of the branches commercial
transaction; & the jurisdiction of the court

RP law (law of the place where branches were

created) (Article 15, Code of Commerce)

rd

Dissolution, winding up, & termination of

branches in the RP

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 independent of

individuals, usually not for profit)

Personal law of the foundation (place of

principal center of administration)