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

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 Generally affected by public interest; those in general are of interest only to sovereign states

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

  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

  1. 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 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:

  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 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 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 – 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) Where debtor may be effectively served with summons (usually the domicile)

2

Voluntary assignment of debts Lex loci voluntatis or lex loci intentionis (proper law of the 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

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

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 Law of the place where the sale was consummated

11

Franchises Law of the place that granted them

12

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 Lex nationalii OR lex domicilii OR RP law (Article 816, CC), OR lex loci celebrationis (Article 17(1))

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)

2

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

  1. Alienation & encumbrance of property
Lex situs (Article 16 [1])
  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:

  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 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:

  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 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 object of the crime was received (not where the false representations were made)

6

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

7

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:

  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)
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 CO-EXTENSIVE) w/ 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 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

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About Magz

First of all, I am not a lawyer. I'm a graduate of AB Political Science and went to the College of Law but stopped going to law school for some reasons. I'm a passionate teacher who has been teaching English to speakers of other languages and a person who likes writing and blogging. I lost some important files and software when my computer broke down so the reason I created this website is to preserve the notes, reviewers and digests I collected when I was at the law school and at the same time, I want to help out law students who do not have enough time to go and read books in the library.

Posted on December 20, 2011, in Civil Law and tagged . Bookmark the permalink. 3 Comments.

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