Civil Law – Conflict of Laws

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 entities possessing
individuals; governs international personality,
individuals in their private e.g., UN; governs states in
2 Persons transactions which involve a their relationships amongst
involved foreign element themselves
Generally affected by public
interest; those in general
3 Transactions Private transactions are of interest only to
involved between private individuals sovereign states
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
Remedies blockades, collective
4 and Resort to municipal measures under the UN
Sanctions tribunals 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 Lex fori (Article 43, 390, 391, CC;

Presumptive death & survivorship Rule 131 §5 [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) & consular
Between Filipinos marriages
Lex loci celebrationis EXCEPT if
the marriage is:
1. Highly immoral (like
bigamous/ polygamous
marriages)
2. Universally considered
incestuous (between brother-
sister, and ascendants-
Between Foreigners descendants)
Celebrated
Abroad Apply 1 (b) to uphold validity of
Mixed marriage
National law (Article 21, FC)
Between Foreigners PROVIDED the marriage is not
 highly immoral or universally
considered incestuous)
Celebrated National law of Filipino (otherwise
in RP public policy may be militated
Mixed against)
Marriage by proxy (NOTE: a
marriage by proxy is considered
celebrated where the proxy Lex loci celebrationis (with
appears prejudice to the 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
3. If no common nationality –
1 Personal rights & obligations nationality of husband at the
between husband & wife 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. This is
the DOCTRINE OF
IMMUTABILITY IN THE
2 Property relations bet husband & MATRIMONIAL PROPERTY
wife REGIME)
Rules on Property
FACTUAL SITUATION POINT OF CONTACT
Real property Lex rei sitae (Article 16, CC)
National law of decedent (Article 16
Successional rights par. 2, CC)
National law of decedent (Article.
Capacity to succeed 1039)
Contracts involving real property The law intended will be the proper
which do not deal with the title law of the contract (lex loci
thereto voluntantis or lex loci intentionis)
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
Contracts where the real property mortgage is void; or it may be the
Exceptions is given as security 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
Exceptions: same as those for real same must be changed to pledge
property of personal property)
Means of Transportation
Law of the flag (or in some cases,
Vessels place of registry)

2 Law of the depot (storage place for

Other means supplies or resting place)
Things in transitu (these things
have a changing status because
they move)
Law of the destination (Article.
Loss, destruction, deterioration 1753, CC)
Locus regit actum (where seized) –
Validity & effect of the seizure of because said place is their
the goods temporary situs
Lex loci volutantis or lex loci
3 Disposition or alienage of the intentionis– because here there is a
goods contract

FACTUAL SITUATION POINT OF CONTACT

INTangIBLE PERSONAL PROPERTY
(CHOSES IN ACTION)
Where debtor may be effectively
1 Recovery of debts or involuntary served with summons (usually the
assignment of debts (garnishment) domicile)
Lex loci voluntatis or lex loci
2 intentionis(proper law of the
Voluntary assignment of debts contract)
Other Theories:
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
Lex situs of assets of the debtor
4 (for these assets can be held liable
Administration of debts for the debts)
The right embodied in the
instrument (for example, in the
case of a Swedish bill of exchange,
5 Negotiability or non-negotiability of Swedish law determines its
an instrument negotiability)
In general, situs of the instrument
6 Validity of transfer, delivery or at the time of transfer, delivery or
negotiation of the instrument 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 a
8 Effect between the parties of the contract; usually this is the place
sale of corporate shares 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 Law of the place where the sale
sale of corporate shares was consummated

11
Franchises Law of the place that granted them

12 Goodwill of the business & taxation Law of the place where the
thereto business is carried 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 Filipinos are granted
13 Patents, copyrights, trademarks, reciprocal concessions in the state
trade names of the foreigners
Wills, Succession & Administration of Conflict Rules
FACTUAL SITUATION POINT OF CONTACT
Extrinsic Validity of Wills
Lex nationalii OR lex domicilii OR
1 RP law (Article 816, CC), OR lex
Made by an alien abroad loci celebrationis(Article 17(1))
2 Lex nationalii OR lex loci
Made by a Filipino abroad celebrationis(Article 815)

3 Lex nationalii OR lex loci

Made by an alien in the RP celebrationis(Article 817)

FACTUAL SITUATION POINT OF CONTACT

Extrinsic Validity of Joint Wills (made in
the same instrument)

1 Lex nationalii (void, even if valid

Made by Filipinos abroad where made) (Article 819)
Valid if valid according to lex
2 domicilii or lex loci
Made by aliens abroad celebrationis (Article 819)
Lex loci celebrationis therefore void
even if apparently allowed by
Article 817 because the prohibition
3 on joint wills is a clear expression of
Made by aliens in the RP public policy
Lex nationalii of the deceased –
regardless of the LOCATION &
NATURE of the property (Article 16
Intrinsic Validity of Wills (2))
Lex nationalii of the deceased – not
Capacity to Succeed of the heir (Article 1039)
Revocation of Wills

1 Lex loci actus (of the revocation)

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

2 Lex domicilii (RP law) OR lex loci

1. By a DOMICILIARY of the RP actus (of the revocation) (Article 17)
Probate of Wills Made Abroad
Lex fori of the RP applies as to the
procedural aspects, i.e., the will
1 must be fully probated here & due
If not yet probated abroad execution must be shown
Lex fori of the RP again applies as
to the procedural aspects; must
2 also be probated here, but instead
If already probated abroad 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
Place where domiciled at death or
1 incase of non-domiciliary, where
Where appointed 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
2 ancillary administrators & receivers
Powers 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

1. Alienation & encumbrance of

property Lex situs (Article 16 [1])
Law of the RP (if made in RP
1. Consular contracts 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
Intrinsic validity (including interpretation contractus(in the broad sense),
of the instruments, and amt. of meaning the lex voluntatis or lex
damages for breach) 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
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 was
committed)NOTE: liability for foreign
Liability & damages for torts in
generalNOTE: The locus torts may be enforced in the RP if:
delicti (place of commission of torts) 1. The tort is not penal in
is faced by the problem of character
characterization. In civil law 2. If the enforcement of the
countries, the locus delicti is generally tortious liability won’t
where the act began; in common law contravene our public policy
countries, it is where the act first 3. If our judicial machinery is
became effective adequate for such enforcement
Rules on Crimes
FACTUAL SITUATION POINT OF CONTACT
Essential elements of a crime and Generally where committed (locus
penalties 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
Frustrated an consummated, Where the victim was injured (not
1 homicide, murder, infanticide & where the aggressor wielded his
parricide weapon)
Where the intended victim was (not
where the aggressor was situated)
– so long as the weapon or the
2 bullet either touched him or fell
Attempted homicide, etc. inside the territory where he was

3 Where the illegal marriage was

Bigamy performed
Where the property was unlawfully
taken from the victim (not the place
4 to which the criminal went after the
Theft & robbery commission of the crime)
Where the object of the crime was
5 Estafa or swindling thru false received (not where the false
representation representations were made)
 Conspiracy to commit treason,
rebellion, or seditionNOTE: Other Where the conspiracy was formed
6 conspiracies are NOT penalized by (not where the overt act of treason,
our laws rebellion or sedition was committed)

7
Libel Where published or circulated

8 Any place where the offense

Continuing crime begins, exists or continues
Any place where any of the
9 essential elements of the crime took
Complex crime 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
Powers and liabilities 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
3. officers Law of the place of incorporation
Law of the place of incorporation &
law of the place of performance
Validity of corporate acts & (the act or contract must be
contracts (including ultra vires acts) authorized by BOTH laws)
Right to sue & amenability to court
processes & suits against it Lex fori
Law of the place of incorporation
provided that the public policy of
Manner & effect of dissolution 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
Domicile 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/
Receivers (appointment & powers) the authority of the appointing court
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 personal law of the
partnership, i.e., the law of the
The existence or non-existence of place where it was created (Article
legal personality of the firm; the 15 of the Code of Commerce)
capacity to contract; liability of the (Subject to the exceptions given
firm & the partners to 3rd persons above as in the case of corps.)
Creation of branches in the RP;
validity & effect of the branches’ RP law (law of the place where
commercial transaction; & the branches were created) (Article 15,
jurisdiction of the court Code of Commerce)
Dissolution, winding up, & RP law (Article 15, Code of
termination of branches in the RP 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
Domicile its principal functions (Article. 15)
RP law insofar as the assets in the
RP are concerned can be
Receivers exercised as such only in the RP
Foundations (combination of capital Personal law of the foundation
independent of individuals, usually not (place of principal center of
for profit) administration)