Civil Law Conflict of Laws

Dec 20
Posted by Magz
CONFLICTS OF LAWS; Definition:
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).
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 involved 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
3
Transactions involved
Private transactions between private individuals
public interest; those in general are of interest only to sovereign states

Generally affected by

4
Remedies and Sanctions

Resort to municipal tribunals

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
Special Laws
Treaties and Conventions
Judicial Decisions
International Customs
Indirect:

1. Natural moral law

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
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:
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
Assume jurisdiction and apply either the law of the forum or of another state
i.
A specific law of the forum decrees that internal law should apply
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
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
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
APPLY FOREIGN LAW when properly pleaded and proved
THEORIES WHY FOREIGN LAW SHOULD BE GIVEN EFFECT
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
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.

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
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
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 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

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 Abroad
Between Filipinos
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
Between Foreigners
Lex loci celebrationis EXCEPT if the marriage is:
Highly immoral (like bigamous/ polygamous marriages)
Universally considered incestuous (between brother-sister, and ascendants-descendants)
Mixed

Apply 1 (b) to uphold validity of marriage

Celebrated in RP
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)
Rules on Marriage as a Status

FACTUAL SITUATION

POINT OF CONTACT
1
Personal rights & obligations between husband & wife
subsequent change of nationality:

National of husband(Note: Effect of

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)
2
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)
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 which do not deal with the title thereto
The law intended will be the proper
law of the contract (lex loci voluntantis or lex loci intentionis)
Contracts where the real property is given as security
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.
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)
2
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)
3
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
temporary situs
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)
1
Recovery of debts or involuntary assignment of debts (garnishment)
served with summons (usually the domicile)

Where debtor may be effectively

2
Voluntary assignment of debts
Other Theories:

Lex loci voluntatis or lex loci intentionis (proper law of the contract)

National law of the debtor or creditor

Domicile of the debtor or creditor
Lex loci celebrationis
Lex loci solutionis
3
Taxation of debts Domicile of creditor
4
Administration of debts

Lex situs of assets of the debtor (for these assets can be held liable for the

debts)
5
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)
6
Validity of transfer, delivery or negotiation of the instrument
time of transfer, delivery or negotiation

In general, situs of the instrument at the

7
Effect on a corporation of the sale of corporate shares

Law of the place incorporation

8
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)
9
Taxation on the dividends of corporate shares

Law of the place of incorporation

10
Taxation on the income from the sale of corporate shares
consummated
11
Franchises
12

Law of the place that granted them

Law of the place where the sale was

Goodwill of the business & taxation thereto Law of the place where the business is carried on
13
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
Wills, Succession & Administration of Conflict Rules
FACTUAL SITUATION

POINT OF CONTACT
Extrinsic Validity of Wills
1
Made by an alien abroad
celebrationis (Article 17(1))

Lex nationalii OR lex domicilii OR RP law (Article 816, CC), OR lex loci

2
Made by a Filipino abroad Lex nationalii OR lex loci celebrationis (Article 815)
3
Made by an alien in the RP

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

Lex nationalii (void, even if valid where made) (Article 819)

Made by aliens abroad

Valid if valid according to lex domicilii or lex loci celebrationis (Article 819)

3
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)
2
If done OUTSIDE the RP
By a NON-DOMICILIARY
Lex loci celebrationis (of the making of the will, NOT revocation), OR lex domicilii (Article 829)
By a DOMICILIARY of the RP

Lex domicilii (RP law) OR lex loci actus (of the revocation) (Article 17)
Probate of Wills Made Abroad
1
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
2
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
1
Where appointed Place where domiciled at death or incase of non-domiciliary, where assets are found
2
Powers 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
Rules on Obligation and Contracts
FACTUAL SITUATION

POINT OF CONTACT
Formal or Extrinsic Validity

Lex loci celebrationis (Article 17 {1})

Exceptions

Alienation & encumbrance of property

Lex situs (Article 16 [1])
Consular contracts
Law of the RP (if made in RP consulates)
Capacity of Contracting Parties
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
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:
Lex loci celebrationis (defect: this makes possible the evasion of the national law)
Lex nationalii (defect: this may impede commercial transactions)
Lex loci solutionis (law of the place of performance) (defect: there may be several places of performance
Prof Minors solution:
Perfection lex loci celebrationis
Cause or consideration lex loci considerations
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:
The tort is not penal in character
If the enforcement of the tortious liability wont contravene our public policy
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:
Territoriality theory where the crime was committed
Nationality theory country which the criminal is citizen or a subject
Real theory any state whose penal code has been violated has jurisdiction, where the crime was committed
inside or outside its territory
Protective theory any state whose national interests may be jeopardized has jurisdiction so that it may protect
itself
Cosmopolitan or universality theory state where the criminal is found or which has his custody has jurisdiction
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)
2
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
3
Bigamy Where the illegal marriage was performed
4
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)
5
Estafa or swindling thru false representation
where the false representations were made)

Where the object of the crime was received (not

6
laws
7

Conspiracy to commit treason, rebellion, or seditionNOTE: Other conspiracies are NOT penalized by our
Where the conspiracy was formed (not where the overt act of treason, rebellion or sedition was committed)

Libel

Where published or circulated

8
Continuing crime Any place where the offense begins, exists or continues
9
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:

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
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:
Law of the place of incorporation (this is generally the RP rule)
Law of the place or center of management (center for administration or siege social) (center office principle)
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
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)
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)

Reference:
Civil Law (Conflict of Laws) Memory Aid
Ateneo Central Bar Operations 2001