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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 CONFLICT OF LAW LAW OF NATIONS

1 Nature Municipal in character International in character

2 Persons Dealt with by private Sovereign states and other

involved individuals; governs
individuals in their private
transactions which involve a
foreign element
3 Transactions Private transactions between
involved private individuals
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
4 Remedies and Resort to municipal tribunals May be peaceful or forcible
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 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 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 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

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

person 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

7 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 POINT OF CONTACT

Celebrated Between Filipinos Lex loci celebrationis is without

Abroad prejudice to the exceptions under
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

Celebrated Between Foreigners
in RP
Mixed
Marriage by proxy (NOTE: a marriage
by proxy is considered celebrated
where the proxy appears
Rules on Marriage as a Status
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)
Lex loci celebrationis (with prejudice to
the foregoing rules)

FACTUAL SITUATION POINT OF CONTACT

1 Personal rights & obligations between National of husband(Note: Effect of

husband & wife 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)

2 Property relations bet husband & wife
Rules on Property
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)
 FACTUAL SITUATION POINT OF CONTACT

Real property Lex rei sitae (Article 16, CC)

Exceptions Successional rights National law of decedent (Article 16
par. 2, CC)
Capacity to succeed National law of decedent (Article.
1039)
Contracts involving real property The law intended will be the proper
which do not deal with the title thereto law of the contract (lex loci voluntantis
or lex loci intentionis)
Contracts where the real property is The principal contract (usually loan) is
given as security 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)
1 In General Lex rei sitae (Article. 16, CC)

Exceptions: same as those for real
property
2 Means of Transportation
Vessels
Other means
3 Things in transitu (these things have a
changing status because they move)
Loss, destruction, deterioration
EXCEPTION: same as those for real
property EXCEPT that in the example
concerning mortgage, the same must
be changed to pledge of personal
property)
Law of the flag (or in some cases, place
of registry)
Law of the depot (storage place for
supplies or resting place)
Law of the destination (Article. 1753,
CC)
 Validity & effect of the seizure of the
goods
Disposition or alienage of the goods
Locus regit actum (where seized) –
because said place is their temporary
situs
Lex loci volutantis or lex loci intentionis –
because here there is a contract

FACTUAL SITUATION POINT OF CONTACT

INTangIBLE PERSONAL PROPERTY

(CHOSES IN ACTION)
1 Recovery of debts or involuntary
assignment of debts (garnishment)
2 Voluntary assignment of debts
Other Theories:
Where debtor may be effectively
served with summons (usually the
domicile)
Lex loci voluntatis or lex loci intentionis
(proper law of the contract)

1. National law of the debtor or creditor

2. Domicile of the debtor or creditor
3. Lex loci celebrationis
4. Lex loci solutionis

3 Taxation of debts Domicile of creditor

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

5 Negotiability or non-negotiability of an
instrument
6 Validity of transfer, delivery or
negotiation of the instrument
7 Effect on a corporation of the sale of
corporate shares
8 Effect between the parties of the sale of
corporate shares
these assets can be held liable for the
debts)
The right embodied in the instrument
(for example, in the case of a Swedish
bill of exchange, Swedish law
determines its negotiability)
In general, situs of the instrument at
the time of transfer, delivery or
negotiation
Law of the place incorporation
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)
 9 Taxation on the dividends of corporate Law of the place of incorporation
shares
10 Taxation on the income from the sale Law of the place where the sale was
of corporate shares consummated
11 Franchises Law of the place that granted them

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

1 Made by an alien abroad
2 Made by a Filipino abroad
3 Made by an alien in the RP
Lex nationalii OR lex domicilii OR RP
law (Article 816, CC), OR lex loci
celebrationis (Article 17(1))
Lex nationalii OR lex loci celebrationis
(Article 815)
Lex nationalii OR lex loci celebrationis
(Article 817)

FACTUAL SITUATION POINT OF CONTACT

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
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
 Intrinsic Validity of Wills
Capacity to Succeed
Revocation of Wills
1 If done in the RP
2 If done OUTSIDE the RP
1. By a NON-DOMICILIARY
1. By a DOMICILIARY of the RP
Probate of Wills Made Abroad
1 If not yet probated abroad
2 If already probated abroad
Executors and Administrators
1 Where appointed
2 Powers
Rules on Obligation and Contracts
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)
Lex loci celebrationis (of the making of
the will, NOT revocation), OR lex
domicilii (Article 829)
Lex domicilii (RP law) OR lex loci actus
(of the revocation) (Article 17)
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
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
Place where domiciled at death or
incase of non-domiciliary, 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 non-
successive cases
 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

Capacity of Contracting Parties
Exception
Alienation & encumbrance of property
Intrinsic validity (including interpretation of
the instruments, and amt. of damages for
breach)
Other Theories are:
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
Lex situs (Article 16 {1})
Proper law of the contract – lex
contractus (in the broad sense),
meaning the lex voluntatis or lex loci
intentionis

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
 countries, the locus delicti is generally
where the act began; in common law
countries, it is where the act first became
effective
1. The tort is not penal in character
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

1 Frustrated an consummated,
homicide, murder, infanticide &
parricide
2 Attempted homicide, etc.
3 Bigamy
4 Theft & robbery
Where the victim was injured (not
where the aggressor wielded his
weapon)
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
Where the illegal marriage was
performed
Where the property was unlawfully
taken from the victim (not the place to
which the criminal went after the
commission of the crime)
 5 Estafa or swindling thru false
representation
6 Conspiracy to commit treason,
rebellion, or seditionNOTE: Other
conspiracies are NOT penalized by our
laws
7 Libel
8 Continuing crime
9 Complex crime
Rules on Juridical Persons
FACTUAL SITUATION
Corporations
Powers and liabilities
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
Validity of corporate acts & contracts
Where the object of the crime was
received (not where the false
representations were made)
Where the conspiracy was formed (not
where the overt act of treason, rebellion
or sedition was committed)
Where published or circulated
Any place where the offense begins,
exists or continues
Any place where any of the essential
elements of the crime took place
POINT OF CONTACT
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 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
Law of the place of incorporation &
 (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
Domicile
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)
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
independent of individuals, usually not for of principal center of administration)
profit)

Reference:

Civil Law (Conflict of Laws) Memory Aid

Ateneo Central Bar Operations 2001

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