Alayka A.

Anuddin
Ateneo College of Law

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

Sovereign states and other

Dealt with by private
individuals; governs
individuals in their private
2 transactions which involve
Persons involved a foreign element
entities possessing
international personality,
e.g., UN; governs states in
their relationships amongst
themselves

Generally affected by public

Private transactions interest; those in general are
3 between private of interest only to sovereign
Transactions involved individuals states

May be peaceful or forcible

4 Resort to municipal
Remedies and 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
tribunals Charter, and war.

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. 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:
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:

(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
Alayka A. Anuddin
Ateneo College of Law

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 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 Lex fori (Article 43, 390, 391, CC; Rule 131 §5

Presumptive death & survivorship [jj], Rules of Court)

Rules on Marriage as a Contract

FACTUAL SITUATION 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) &
Between Filipinos consular marriages
Alayka A. Anuddin
Ateneo College of Law

Lex loci celebrationis EXCEPT if the marriage

is:
1. Highly immoral (like bigamous/
polygamous marriages)
Celebrated
2. Universally considered incestuous
Abroad
(between brother-sister, and
Between Foreigners ascendants-descendants)

Mixed Apply 1 (b) to uphold validity of marriage

National law (Article 21, FC) PROVIDED the

marriage is not highly immoral or universally
Celebrated Between Foreigners considered incestuous)

in RP National law of Filipino (otherwise public

Mixed policy may be militated against)

Marriage by proxy (NOTE: a marriage by

proxy is considered celebrated where the Lex loci celebrationis (with prejudice to the
proxy appears foregoing rules)

Rules on Marriage as a Status

FACTUAL SITUATION POINT OF CONTACT

National of husband(Note: Effect of

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
1 Personal rights & obligations between husband 3. If no common nationality – nationality
& wife of husband at the time of wedding)

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.
2 This is the DOCTRINE OF IMMUTABILITY IN
Property relations bet husband & wife THE MATRIMONIAL PROPERTY REGIME)

Rules on Property

FACTUAL SITUATION POINT OF CONTACT

Real property Lex rei sitae (Article 16, CC)

National law of decedent (Article 16 par. 2,

Successional rights CC)

Capacity to succeed National law of decedent (Article. 1039)

The law intended will be the proper law of

Contracts involving real property which do the contract (lex loci voluntantis or lex loci
not deal with the title thereto intentionis)

The principal contract (usually loan) is

Contracts where the real property is given governed by the proper law oft the contract
Exceptions as security – (lex loci voluntatis or lex loci
Alayka A. Anuddin
Ateneo College of Law

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)

EXCEPTION: same as those for real property

EXCEPT that in the example concerning
mortgage, the same must be changed to
Exceptions: same as those for real property pledge of personal property)

Means of Transportation

Law of the flag (or in some cases, place of

Vessels registry)

2 Law of the depot (storage place for supplies

Other means 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)

Locus regit actum (where seized) – because

Validity & effect of the seizure of the goods said place is their temporary situs

3 Lex loci volutantis or lex loci intentionis–

Disposition or alienage of the goods because here there is a contract

FACTUAL SITUATION POINT OF CONTACT

INTangIBLE PERSONAL PROPERTY (CHOSES IN ACTION)

1 Recovery of debts or involuntary assignment Where debtor may be effectively served with
of debts (garnishment) summons (usually the domicile)

2 Lex loci voluntatis or lex loci

Voluntary assignment of debts intentionis(proper law of the contract)

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. Lex loci celebrationis

4. Lex loci solutionis

3
Taxation of debts Domicile of creditor

4 Lex situs of assets of the debtor (for these

Administration of debts assets can be held liable for the debts)

The right embodied in the instrument (for

example, in the case of a Swedish bill of
5 Negotiability or non-negotiability of an exchange, Swedish law determines its
instrument negotiability)

6 Validity of transfer, delivery or negotiation of In general, situs of the instrument at the time
the instrument of transfer, delivery or negotiation

7 Effect on a corporation of the sale of

corporate shares Law of the place incorporation

Lex loci voluntatis or lex loci intentionis

(proper law of the contract) – for this is really
8 Effect between the parties of the sale of a contract; usually this is the place where the
corporate shares 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 Law of the place where the sale was
corporate shares consummated

11
Franchises Law of the place that granted them

12 Law of the place where the business is carried

Goodwill of the business & taxation thereto on

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
13 Filipinos are granted reciprocal concessions in
Patents, copyrights, trademarks, trade names the state of the foreigners

Wills, Succession & Administration of Conflict Rules

FACTUAL SITUATION POINT OF CONTACT

Alayka A. Anuddin
Ateneo College of Law

Extrinsic Validity of Wills

Lex nationalii OR lex domicilii OR RP law

1 (Article 816, CC), OR lex loci
Made by an alien abroad celebrationis(Article 17(1))

2 Lex nationalii OR lex loci celebrationis(Article

Made by a Filipino abroad 815)

3 Lex nationalii OR lex loci celebrationis(Article

Made by an alien in the RP 817)

FACTUAL SITUATION POINT OF CONTACT

Extrinsic Validity of Joint Wills (made in the same

instrument)

1 Lex nationalii (void, even if valid where made)

Made by Filipinos abroad (Article 819)

2 Valid if valid according to lex domicilii or lex

Made by aliens abroad loci celebrationis (Article 819)

Lex loci celebrationis therefore void even if

apparently allowed by Article 817 because the
3 prohibition on joint wills is a clear expression
Made by aliens in the RP of public policy

Lex nationalii of the deceased – regardless of

the LOCATION & NATURE of the property
Intrinsic Validity of Wills (Article 16 (2))

Lex nationalii of the deceased – not of the heir

Capacity to Succeed (Article 1039)

Revocation of Wills

1
If done in the RP Lex loci actus (of the revocation) (Article. 829)

If done OUTSIDE the RP

Lex loci celebrationis (of the making of the

will, NOT revocation), OR lex domicilii(Article
1. By a NON-DOMICILIARY 829)

2 Lex domicilii (RP law) OR lex loci actus (of the

1. By a DOMICILIARY of the RP revocation) (Article 17)
Alayka A. Anuddin
Ateneo College of Law

Probate of Wills Made Abroad

Lex fori of the RP applies as to the procedural

1 aspects, i.e., the will must be fully probated
If not yet probated abroad 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
2 enforcement here of the foreign judgment
If already probated abroad on the probate abroad

Executors and Administrators

1 Place where domiciled at death or incase of

Where appointed 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
2 administrators & receivers even in non-
Powers successive cases

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
Capacity of Contracting Parties of lex loci celebrationis

Exception

Alienation & encumbrance of property Lex situs (Article 16 {1})

Proper law of the contract – lex contractus(in

Intrinsic validity (including interpretation of the the broad sense), meaning the lex
instruments, and amt. of damages for breach) 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
Alayka A. Anuddin
Ateneo College of Law

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

Lex loci delicti (law of the place where the delict

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
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
won’t contravene our public policy
3. If our judicial machinery is adequate for
such enforcement

Rules on Crimes

FACTUAL SITUATION POINT OF CONTACT

Generally where committed (locus regit

Essential elements of a crime and penalties 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, Where the victim was injured (not where the
murder, infanticide & parricide aggressor wielded his weapon)

Where the intended victim was (not where the

aggressor was situated) – so long as the weapon
2 or the bullet either touched him or fell inside
Attempted homicide, etc. the territory where he was

3
Bigamy Where the illegal marriage was performed
Alayka A. Anuddin
Ateneo College of Law

Where the property was unlawfully taken from

4 the victim (not the place to which the criminal
Theft & robbery went after the commission of the crime)

Where the object of the crime was received

5 (not where the false representations were
Estafa or swindling thru false representation made)

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

8 Any place where the offense begins, exists or

Continuing crime continues

9 Any place where any of the essential elements

Complex crime of the crime took place

Rules on Juridical Persons

FACTUAL SITUATION POINT OF CONTACT

Corporations

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
Powers and liabilities 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

Law of the place of incorporation & law of the

Validity of corporate acts & contracts place of performance (the act or contract
(including ultra vires acts) must be authorized by BOTH laws)
Alayka A. Anuddin
Ateneo College of Law
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
Receivers
Foundations (combination of capital independent of
individuals, usually not for profit)
Reference:
Civil Law (Conflict of Laws) Memory Aid
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)
RP law insofar as the assets in the RP are
concerned can be exercised as such only in
the RP
Personal law of the foundation (place of
principal center of administration)
Alayka A. Anuddin
Ateneo College of Law

Ateneo Central Bar Operations 2001