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 1 Nature 2 Persons involved CONFLICT OF LAW Municipal in character Dealt with by private individuals; governs individuals in their private transactions which involve a foreign element 3 Transactions involved Private transactions between private individuals 4 Remedies and Sanctions Resort to municipal tribunals LAW OF NATIONS International in character Sovereign states and other entities possessing international personality, e.g., UN; governs states in their relationships amongst themselves Generally affected by public interest; those in general are of interest only to sovereign states 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 3. Special Laws 4. Treaties and Conventions 5. Judicial Decisions 6. International Customs INDIRECT: 1. Natural moral law 2. 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 there is a good reason when any one of the following factors is present: i.law merchant. The proper foreign law was not properly pleaded and proved . the controversy may be more suitably tried elsewhere 2.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 . rights. that system of laws which is adopted by all commercial nations and constitute as part of the law of the land.law of the place where the thing or subject matter is situated. or on the ground of forum non-conveniens DOCTRINE OF FORUM NON CONVENIENS .the unwritten common law.law of the place where property is situated. LONG ARM STATUTES .the forum is inconvenient. WAYS OF DEALING WITH A CONFLICTS PROBLEM: 1.law of the place of solution. refers the matter back to the law of the forum or a third state. Dismiss the case for lack of jurisdiction.doctrine whereby a jural matter is presented which the conflict of laws rules of the forum refer to a foreign law which in turn. A specific law of the forum decrees that internal law should apply Examples: Article. commercial law. Assume jurisdiction and apply either the law of the forum or of another state a. the law of the place where payment or performance of a contract is to be made LEX LOCI DELICTI COMMISSI .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 .LEX LOCI CONTRACTUS .law of the place where the contract is made LEX LOCI SOLUTIONIS . When reference is made back to the law of the forum. & capacity of a person should be governed by the law of his domicile. obligations.forum law should be applied whenever there is good reason to do so. condition. the general rule is that lands and other immovables are governed by the law of the state where they are situated LEX LOCI ACTUS . 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 . APPLY INTERNAL LAW .law of the place where the act was done LEX LOCI CELEBRATIONIS .national law RENVOI DOCTRINE .Statutes allowing the courts to exercise jurisdiction when there are minimum contacts between the non-resident defendant and the forum. the ends of justice would be best served by trial in another forum. 16 of the Civil Code . the status. This is principally adopted in the RP DOMICILIARY THEORY .law of the place where the crime took place LEX MEREATORIA .in general." NATIONALITY THEORY . part of common law LEX NON SCRIPTA . which includes general and particular customs and particular local laws LEX PATRIAE . this is said to be "remission" while reference to a third state is called "transmission.prohibits Filipinos from making joint wills even if valid in foreign country ii.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 .by virtue of which the status and capacity of an individual are generally governed by the law of his nationality. When the goal is realized. there will be “harmony of laws” 5. 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. thus. APPLY FOREIGN LAW . that is. Theory of Local Law. CC) Same Same Same Same Same Lex fori (Article 43.when properly pleaded and proved THEORIES WHY FOREIGN LAW SHOULD BE GIVEN EFFECT 1. the solution should be approximately the same. Theory of Justice – the purpose of all laws. by applying similar rules. 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 b. Rule 131 §5 [jj]. residents. Theory of Comity – foreign law is applied because of its convenience & because we want to give protection to our citizens. identical or similar solutions anywhere & everywhere. including Conflict of Laws. 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. if this can be attained in may cases applying the proper foreign law. 391. 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. require us to do so. Rules of Court) . it is as if the foreign law has become part & parcel of our local law 4. 3.adherents of this school of thought believe that we apply foreign law not because it is foreign. & transients in our land 2. is the dispensing of justice. CC.NOTICE AND PROOF OF FOREIGN LAW As a general rule. hence. we must do so RULES ON STATUS IN GENERAL FACTUAL SITUATION 1 Beginning of personality of natural person 2 Ways & effects of emancipation 3 Age of majority 4 Use of names and surnames 5 Use of titles of nobility 6 Absence 7 Presumptive death & survivorship POINT OF CONTACT National law of the child (Article 15. 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 iii. courts do not take judicial notice of foreign laws. irrespective of the forum. but because our laws. 390. Highly immoral (like bigamous/ polygamous marriages) b. 4. 5 & 6). This is the DOCTRINE OF IMMUTABILITY IN THE MATRIMONIAL PROPERTY REGIME) .Celebrated in RP Celebrated Abroad RULES ON MARRIAGE AS A CONTRACT FACTUAL SITUATION Between Filipinos Between Foreigners Mixed Between Foreigners Mixed POINT OF CONTACT Lex loci celebrationis is without prejudice to the exceptions under Articles 25. If no common nationality – nationality 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. If both will have a new nationality – the new one b. 36. and ascendants-descendants) Apply 1 (b) to uphold validity of marriage National law (Article 21. 37 & 38 of the Family Code (bigamous & incestuous marriages) & consular marriages Lex loci celebrationis EXCEPT if the marriage is: a. 35 (1. FC) PROVIDED the marriage is not highly immoral or universally considered incestuous) National law of Filipino (otherwise public policy may be militated against) Marriage by proxy (NOTE: a marriage Lex loci celebrationis (with prejudice to by proxy is considered celebrated where the foregoing rules) the proxy appears RULES ON MARRIAGE AS A STATUS FACTUAL SITUATION 1 Personal rights & obligations between husband & wife 2 Property relations bet husband & wife POINT OF CONTACT National of husband (Note: Effect of subsequent change of nationality: a. If only one will change – the last common nationality c. Universally considered incestuous (between brother-sister. 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. CC) National law of decedent (Article 16 par. If the principal contract is void. 1753. or it may be the other way around. the mortgage could have been valid. the mortgage will also be void (for lack of proper cause or consideration). TANGIBLE PERSONAL PROPERTY (CHOSES IN POSSESSION) 1 IN GENERAL Lex rei sitae (Article. although by itself. CC) Capacity to succeed National law of decedent (Article. CC) Exceptions: same as those for real property EXCEPTION: same as those for real property EXCEPT that in the example concerning mortgage. deterioration Validity & effect of the seizure of the goods Disposition or alienage of the goods Law of the destination (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. 16. 2. There is a possibility that the principal contract is valid but the mortgage is void.Exceptions RULES ON PROPERTY FACTUAL SITUATION REAL PROPERTY Successional rights POINT OF CONTACT Lex rei sitae (Article 16. CC) Locus regit actum (where seized) – because said place is their temporary situs Lex loci volutantis or lex loci intentionis – because here there is a contract . the same must be changed to pledge of personal property) 2 MEANS OF TRANSPORTATION Vessels Law of the flag (or in some cases. destruction. delivery or negotiation Effect on a corporation of the sale of Law of the place incorporation corporate shares Effect between the parties of the sale of Lex loci voluntatis or lex loci intentionis corporate shares (proper law of the contract) – for this is really a contract. Lex loci solutionis Taxation of debts Domicile of creditor Administration of debts Lex situs of assets of the debtor (for these assets can be held liable for the debts) Negotiability or non-negotiability of an The right embodied in the instrument (for instrument example. delivery or In general. usually this is the place where the certificate is delivered) Taxation on the dividends of corporate Law of the place of incorporation shares Taxation on the income from the sale of Law of the place where the sale was corporate shares consummated Franchises Law of the place that granted them Goodwill of the business & taxation Law of the place where the business is thereto carried on Patents. they are names protected only by the state that granted them NOTE: 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. in the case of a Swedish bill of exchange. trade In the absence of a treaty. Domicile of the debtor or creditor c. CC). situs of the instrument at the negotiation of the instrument time of transfer. Swedish law determines its negotiability) Validity of transfer.FACTUAL SITUATION INTANGIBLE PERSONAL PROPERTY (CHOSES IN ACTION) 1 Recovery of debts or involuntary assignment of debts (garnishment) 2 Voluntary assignment of debts 3 4 5 6 7 8 9 10 11 12 13 POINT OF CONTACT Where debtor may be effectively served with summons (usually the domicile) Lex loci voluntatis or lex loci intentionis (proper law of the contract) OTHER THEORIES: a. copyrights. 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) . National law of the debtor or creditor b. trademarks. 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. Lex loci celebrationis d. or ancillary administrators & receivers even in nonsuccessive cases . 829) 2 If done OUTSIDE the RP a. i. domiciliary.. NOT revocation). By a NON-DOMICILIARY Lex loci celebrationis (of the making of the will. generally it is enough to ask for the enforcement here of the foreign judgment on the probate abroad Place where domiciled at death or incase of non-domiciliary. must also be probated here.FACTUAL SITUATION EXTRINSIC VALIDITY OF JOINT WILLS (MADE IN THE SAME INSTRUMENT) 1 Made by Filipinos abroad 2 Made by aliens abroad 3 Made by aliens in the RP INTRINSIC VALIDITY OF WILLS CAPACITY TO SUCCEED REVOCATION OF WILLS 1 If done in the RP POINT OF CONTACT Lex nationalii (void. OR lex domicilii (Article 829) b. 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 concerned NOTE: these rules also apply to principal. even if valid where made) (Article 819) Valid if valid according to lex domicilii or lex loci celebrationis (Article 819) Lex loci celebrationis therefore void even if apparently allowed by Article 817 because the prohibition on joint wills is a clear expression of public policy Lex nationalii of the deceased – regardless of the LOCATION & NATURE of the property (Article 16 (2)) Lex nationalii of the deceased – not of the heir (Article 1039) Lex loci actus (of the revocation) (Article. but instead of proving due execution. the will must be fully probated here & due execution must be shown Lex fori of the RP again applies as to the procedural aspects.e. 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 2 If already probated abroad EXECUTORS AND ADMINISTRATORS 1 Where appointed 2 Powers Lex fori of the RP applies as to the procedural aspects. Perfection – lex loci celebrationis ii. the locus delicti is generally where the act began. If our judicial machinery is adequate for such enforcement POINT OF CONTACT Generally where committed (locus regit actum) . Cause or consideration – lex loci considerations iii. Lex nationalii (defect: this may impede commercial transactions) c. OF DAMAGES FOR BREACH) Lex situs (Article 16 {1}) Proper law of the contract – lex contractus (in the broad sense). Lex loci solutionis (law of the place of performance) (defect: there may be several places of performance d. In civil law countries. AND AMT. where the SC adhered to the theory of lex loci celebrationis CAPACITY OF CONTRACTING PARTIES Exception Alienation & encumbrance of property INTRINSIC VALIDITY (INCLUDING INTERPRETATION OF THE INSTRUMENTS. it is where the act first became effective RULES ON CRIMES FACTUAL SITUATION ESSENTIAL ELEMENTS OF A CRIME AND PENALTIES POINT OF CONTACT Lex loci delicti (law of the place where the delict was committed) NOTE: liability for foreign torts may be enforced in the RP if: a. Performance – lex loci solutionis (defect: this theory combines the defect of the others) RULES ON TORTS FACTUAL SITUATION Liability & damages for torts in general NOTE: The locus delicti (place of commission of torts) is faced by the problem of characterization. Lex loci celebrationis (defect: this makes possible the evasion of the national law) b. 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. Alienation & encumbrance of property Lex situs (Article 16 [1]) b. If the enforcement of the tortious liability won’t contravene our public policy c. The tort is not penal in character b.RULES ON OBLIGATION AND CONTRACTS FACTUAL SITUATION FORMAL OR EXTRINSIC VALIDITY Exceptions POINT OF CONTACT Lex loci celebrationis (Article 17 {1}) a. meaning the lex voluntatis or lex loci intentionis OTHER THEORIES ARE: a. Prof Minor’s solution: i. in common law countries. exception: Article 2. it is nor deemed a Filipino corporation & therefore can’t acquire land. Protective theory – any state whose national interests may be jeopardized has jurisdiction so that it may protect itself e. where the crime was committed inside or outside its territory d.THEORIES AS TO WHAT COURT HAS JURISDICTION: a. we follow the territoriality theory in general. Cosmopolitan or universality theory – state where the criminal is found or which has his custody has jurisdiction f. 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 Where the object of the crime was representation received (not where the false representations were made) 6 Conspiracy to commit treason. exploit our natural resources. RPC. homicide. Territoriality theory – where the crime was committed b. infanticide & parricide the aggressor wielded his weapon) 2 Attempted homicide. stresses the protective theory THE LOCUS DELICTI OF CERTAIN CRIMES 1 Frustrated an consummated. 7 operate public utilities unless 60% of capital if Filipino owned b. rebellion. Where the victim was injured (not where murder. Where the conspiracy was formed (not or sedition where the overt act of treason. For constitutional purposes – even of the corporation was incorporated in the RP. Real theory – any state whose penal code has been violated has jurisdiction. 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 CORPORATIONS Powers and liabilities POINT OF CONTACT General rule: the law of the place of incorporation EXCEPTIONS: a. rebellion NOTE: Other conspiracies are NOT or sedition was committed) penalized by our laws 7 Libel Where published or circulated 8 Continuing crime Any place where the offense begins. Nationality theory – country which the criminal is citizen or a subject c. 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 . Passive personality theory – the state of which the victim is a citizen or subject has jurisdiction NOTE: In the RP. etc. powers & duties of members. liability of the firm & the created (Article 15 of the Code of partners to 3rd persons Commerce) (Subject to the exceptions given above as in the case of corps. 15) Receivers (appointment & powers) Principal receiver is appointed by the courts of the state of incorporation. & the jurisdiction of the Code of Commerce) court Dissolution. 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: a. 15) Receivers RP law insofar as the assets in the RP are concerned can be exercised as such only in the RP FOUNDATIONS (COMBINATION OF CAPITAL Personal law of the foundation (place of INDEPENDENT OF INDIVIDUALS. the capacity to the law of the place where it was contract. i. ancillary receivers. Law of the place or center of management (center for administration or siege social) (center office principle) c. issuance. transfer of stocks to bind the corporation. kind of stocks. validity RP law (law of the place where & effect of the branches’ commercial branches were created) (Article 15. stockholders and officers Validity of corporate acts & contracts (including ultra vires acts) Right to sue & amenability to court processes & suits against it Manner & effect of dissolution TEST) Law of the place of incorporation Law of the place of incorporation & law of the place of performance (the act or contract must be authorized by BOTH laws) Lex fori Law of the place of incorporation provided that the public policy of the forum is not militated against 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. USUALLY NOT principal center of administration) FOR PROFIT) . winding up. Law of the place of incorporation (this is generally the RP rule) b. transaction.. amount & legality & dividends. & termination of RP law (Article 15.e. Law of the place of exploitation (exploitation centre or siege d’ exploitation) PARTNERSHIPS The existence or non-existence of legal The personal law of the partnership.Formation of the corporation (requisites). Code of Commerce) branches in the RP 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.) Creation of branches in the RP. personality of the firm.