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

Generally affected by public

3 Transactions Private transactions between interest; those in general are of
involved private individuals 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
Remedies
4 and
measures under the UN
Sanctions Resort to municipal 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 ones domicile applied in the choice of law
questions
Lex Fori law of the forum; that is, the positive law of the state, country or jurisdiction of whose judicial
system of the court where the suit is brought or remedy is sought is an integral part. Substantive rights are
determined by the law where the action arose (lex loci) while the procedural rights are governed by the law
of the place of the forum (lex fori)
Lex Loci law of the place
Lex Loci Contractus the law of the place where the contract was made or law of the place where the
contract is to be governed (place of performance) which may or may not be the same as that of the place
where it was made
Lex Loci Rei Sitae law of the place where the thing or subject matter is situated; the title to realty or
question of real estate law can be affected only by the law of the place where it is situated
Lex Situs law of the place where property is situated; the general rule is that lands and other immovables
are governed by the law of the state where they are situated
Lex Loci Actus law of the place where the act was done
Lex Loci Celebrationis law of the place where the contract is made
Lex Loci Solutionis law of the place of solution; the law of the place where payment or performance of a
contract is to be made
Lex Loci Delicti Commissi law of the place where the crime took place
Lex Mereatoria law merchant; commercial law; that system of laws which is adopted by all commercial
nations and constitute as part of the law of the land; part of common law
Lex Non Scripta the unwritten common law, which includes general and particular customs and particular
local laws
Lex Patriae national law
Renvoi Doctrine doctrine whereby a jural matter is presented which the conflict of laws rules of the forum
refer to a foreign law which in turn, refers the matter back to the law of the forum or a third state. When
reference is made back to the law of the forum, this is said to be remission while reference to a third
state is called transmission.
Nationality Theory by virtue of which the status and capacity of an individual are generally governed by
the law of his nationality. This is principally adopted in the RP
Domiciliary Theory in general, the status, condition, rights, obligations, & capacity of a person should be
governed by the law of his domicile.
Long Arm Statutes Statutes allowing the courts to exercise jurisdiction when there are minimum contacts
between the non-resident defendant and the forum.
WAYS OF DEALING WITH A CONFLICTS PROBLEM:
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 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

Presumptive death & survivorship 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-
Celebrat
Between Foreigners descendants)
ed
Abroad Apply 1 (b) to uphold validity of
Mixed marriage

National law (Article 21, FC)

PROVIDED the marriage is not highly
immoral or universally considered
Between Foreigners incestuous)
Celebrat National law of Filipino (otherwise
ed in RP public policy may be militated
Mixed against)

Marriage by proxy (NOTE: a marriage

by proxy is considered celebrated Lex loci celebrationis (with prejudice
where the proxy appears 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 between nationality of husband at the time
husband & wife 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
2 the DOCTRINE OF IMMUTABILITY IN THE
Property relations bet husband & wife 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 the

Contracts involving real property which do not contract (lex loci voluntantis or lex loci
deal with the title thereto 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 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
Contracts where the real property is given as of proper cause or consideration), although by
Exceptions security 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 or

Other means 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 Where debtor may be effectively served

assignment of debts (garnishment) with 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
3. Lex loci celebrationis
4. Lex loci solutionis

3
Taxation of debts Domicile of creditor

Lex situs of assets of the debtor (for

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

The right embodied in the instrument

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

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

negotiation of the instrument time 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
8 Effect between the parties of the sale of really a contract; usually this is the place
corporate shares where the certificate is delivered)

9 Taxation on the dividends of corporate

shares Law of the place of incorporation

1
0 Taxation on the income from the sale of Law of the place where the sale was
corporate shares consummated
 1
1
Franchises Law of the place that granted them

1
2 Goodwill of the business & taxation Law of the place where the business is
thereto 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
1 names in the RP ONLY IF Filipinos are
3 Patents, copyrights, trademarks, trade granted reciprocal concessions in the
names state of the foreigners

Wills, Succession & Administration of Conflict Rules

FACTUAL SITUATION POINT OF CONTACT

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

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 where

Made by Filipinos abroad made) (Article 819)

Valid if valid according to lex

2 domicilii or lex loci celebrationis (Article
Made by aliens abroad 819)

Made by aliens in the RP Lex loci celebrationis therefore void even

if apparently allowed by Article 817
3
 because the prohibition on joint wills is a
clear expression of public policy

Lex nationalii of the deceased

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

Lex nationalii of the deceased not of

Capacity to Succeed the heir (Article 1039)

Revocation of Wills

1 Lex loci actus (of the revocation) (Article.

If done in the RP 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 must be
1 fully probated here & due execution must
If not yet probated abroad 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
2 for the enforcement here of the foreign
If already probated abroad judgment on the probate abroad

Executors and Administrators

Place where domiciled at death or incase

1 of non-domiciliary, where assets are
Where appointed 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,
2 domiciliary, or ancillary administrators &
Powers 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)

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
Capacity of Contracting Parties celebrationis

Exception

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

Intrinsic validity (including interpretation of Proper law of the contract lex

the instruments, and amt. of damages for contractus (in the broad sense), meaning
breach) 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 Minors 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 torts may be enforced in the RP if:
1. The tort is not penal in character
Liability & damages for torts in
generalNOTE: The locus delicti (place of 2. If the enforcement of the tortious
commission of torts) is faced by the problem liability wont contravene our public
of characterization. In civil law countries, policy
the locus delicti is generally where the act
began; in common law countries, it is where 3. If our judicial machinery is adequate
the act first became effective 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, Where the victim was injured (not where
murder, infanticide & parricide the aggressor wielded his weapon)

Where the intended victim was (not

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

3
Bigamy Where the illegal marriage was performed

Where the property was unlawfully taken

from the victim (not the place to which
4 the criminal went after the commission of
Theft & robbery 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, Where the conspiracy was formed (not
6 or seditionNOTE: Other conspiracies are where the overt act of treason, rebellion
NOT penalized by our laws or sedition was committed)

7
Libel Where published or circulated

8 Any place where the offense begins, exists

Continuing crime or continues
 9 Any place where any of the essential
Complex crime elements 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 cant 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
Powers and liabilities 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 place of performance (the act or
Validity of corporate acts & contracts contract must be authorized by BOTH
(including ultra vires acts) 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 the
Manner & effect of dissolution 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
Domicile (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 personal law of the partnership, i.e.,

The existence or non-existence of legal the law of the place where it was
personality of the firm; the capacity to created (Article 15 of the Code of
contract; liability of the firm & the Commerce) (Subject to the exceptions
partners to 3rd persons given above as in the case of corps.)

Creation of branches in the RP; validity &

effect of the branches commercial RP law (law of the place where branches
transaction; & the jurisdiction of the were created) (Article 15, Code of
court Commerce)

Dissolution, winding up, & termination of

branches in the RP 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
Domicile (Article. 15)

RP law insofar as the assets in the RP are

concerned can be exercised as such only
Receivers in the RP

Foundations (combination of capital

independent of individuals, usually not for Personal law of the foundation (place of
profit) principal center of administration)

Reference:

Choice Of Law Clauses

A choice of law clause is a provision in a contract in which the parties stipulate that any
dispute between them arising from the contract will be determined in accordance with the
law of a particular jurisdiction. If the dispute is litigated, the choice is not binding, but is
normally honored, by the court hearing the lawsuit.
It is to be noted that the law of the forum (lex fori) usually controls all procedural matters
even if a choice of law clause assigns the law of another jurisdiction as controlling in the
matter. In such a case the law of the chosen jurisdiction would only control the
substantive legal issues involved. Generally, a court will assume that a case is to be
governed by the laws of its own forum unless it is expressly shown that a different law
applies.