Professional Documents
Culture Documents
Conflict of Laws Reviewer
Conflict of Laws Reviewer
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).
CONFLICT OF LAW
LAW OF NATIONS
Nature
Municipal in character
International in character
Persons
involved
Transaction
s involved
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
4
Remedies
and
Sanctions
blockades, collective
measures under the UN
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
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
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
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
(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.
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 beapproximately 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
Point of Contact
2
Ways & effects of emancipation
Same
Age of majority
Same
Same
Same
Absence
Same
Celebra
ted
Abroad
POINT OF CONTACT
Between Filipinos
Between Foreigners
Mixed
Celebra
ted in
Between Foreigners
Mixed
RP
POINT OF CONTACT
Rules on Property
FACTUAL SITUATION
POINT OF CONTACT
Real property
Excepti
ons
Successional rights
Capacity to succeed
1
In General
Means of Transportation
Vessels
Other means
2
Things in transitu (these things
have a changing status because
they move)
Loss, destruction, deterioration
FACTUAL SITUATION
POINT OF CONTACT
Other Theories:
1. National law of the debtor or creditor
2. Domicile of the debtor or creditor
3.
4.
3
Taxation of debts
Domicile of creditor
Administration of debts
Negotiability or non-negotiability of
an instrument
Franchises
1
0
1
1
1
2
1
3
POINT OF CONTACT
FACTUAL SITUATION
POINT OF CONTACT
1
Made by Filipinos abroad
Capacity to Succeed
Revocation of Wills
1
If done in the RP
1.
By a NON-DOMICILIARY
1.
By a DOMICILIARY of the RP
2
Probate of Wills Made Abroad
2
Executors and Administrators
Where appointed
Powers
POINT OF CONTACT
Lex loci celebrationis (Article 17 {1})
Exceptions
1.
1.
10
Rules on Torts
FACTUAL SITUATION
POINT OF CONTACT
Rules on Crimes
FACTUAL SITUATION
Essential elements of a crime and
penalties
POINT OF CONTACT
Generally where committed (locus
regit actum)
11
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, murder, infanticide &
parricide
Bigamy
Libel
Continuing crime
Complex crime
POINT OF CONTACT
Corporations
Powers and liabilities
12
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
Lex fori
Domicile
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Domicile
Receivers
14