Professional Documents
Culture Documents
Memory Aid For Conflict of Law
Memory Aid For Conflict of Law
Anuddin
Ateneo College of Law
1
Nature Municipal in character International in character
SOURCES:
Direct:
1. Constitutions
2. Codifications
Alayka A. Anuddin
Ateneo College of Law
1. Special Laws
2. Treaties and Conventions
3. Judicial Decisions
4. International Customs
Indirect:
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 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:
Alayka A. Anuddin
Ateneo College of Law
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:
(b) Assume that the foreign law of the same as 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
(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)
(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 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
1
Beginning of personality of natural person National law of the child (Article 15, CC)
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
Rules on Property
1
In General Lex rei sitae (Article. 16, CC)
Means of Transportation
1 Recovery of debts or involuntary assignment Where debtor may be effectively served with
of debts (garnishment) summons (usually the domicile)
Other Theories:
1. National law of the debtor or creditor
2. Domicile of the debtor or creditor
Alayka A. Anuddin
Ateneo College of Law
3
Taxation of debts Domicile of creditor
6 Validity of transfer, delivery or negotiation of In general, situs of the instrument at the time
the instrument of transfer, delivery or negotiation
9
Taxation on the dividends of corporate shares Law of the place of incorporation
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
Revocation of Wills
1
If done in the RP Lex loci actus (of the revocation) (Article. 829)
Exceptions
Exception
Rules on Torts
Rules on Crimes
1 Frustrated an consummated, homicide, Where the victim was injured (not where the
murder, infanticide & parricide aggressor wielded his weapon)
3
Bigamy Where the illegal marriage was performed
Alayka A. Anuddin
Ateneo College of Law
Conspiracy to commit treason, rebellion, or Where the conspiracy was formed (not where
6 seditionNOTE: Other conspiracies are NOT the overt act of treason, rebellion or sedition
penalized by our laws was committed)
7
Libel Where published or circulated
Corporations
Partnerships
Reference:
Civil Law (Conflict of Laws) Memory Aid
Alayka A. Anuddin
Ateneo College of Law