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
Nature
Municipal in
character
International in character
Persons
involved
Transactions
involved
Private transactions
between private
individuals
Resort to municipal
tribunals
Remedies
and
Sanctions
SOURCES:
Direct:
1. Constitutions
2. Codifications
1.
2.
3.
4.
Special Laws
Treaties and Conventions
Judicial Decisions
International Customs
Indirect:
1.
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.
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.
(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)
(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 giveprotection 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
Beginning of personality of
natural person
Same
Age of majority
Same
Same
Same
Absence
Same
Celebrated
Abroad
POINT OF CONTACT
Between Filipinos
Between Foreigners
Mixed
Between Foreigners
Mixed
Celebrated
in RP
POINT OF CONTACT
Rules on Property
FACTUAL SITUATION
POINT OF CONTACT
Real property
Exception
s
Successional rights
Capacity to succeed
security
In General
Exceptions: same as
those for real property
Means of Transportation
Vessels
Other means
Disposition or alienage of
the goods
contract
FACTUAL SITUATION
POINT OF CONTACT
INTangIBLE PERSONAL
PROPERTY (CHOSES IN
ACTION)
1
Recovery of debts or
involuntary assignment of
debts (garnishment)
Voluntary assignment of
debts
Other
1.
2.
3.
4.
3
Theories:
National law of the debtor or creditor
Domicile of the debtor or creditor
Lex loci celebrationis
Lex loci solutionis
Taxation of debts
Domicile of creditor
Administration of debts
Negotiability or nonnegotiability of an
instrument
Validity of transfer,
delivery or negotiation of
the instrument
Effect on a corporation of
the sale of corporate
shares
shares
1
0
Franchises
Patents, copyrights,
trademarks, trade names
1
1
1
2
1
3
POINT OF CONTACT
FACTUAL SITUATION
POINT OF CONTACT
Capacity to Succeed
Revocation of Wills
1
If done in the RP
1.
By a NONDOMICILIARY
1.
By a DOMICILIARY
of the RP
Where appointed
Powers
POINT OF CONTACT
Lex loci celebrationis (Article 17 {1})
Exceptions
1.
1.
Alienation &
encumbrance of
property
Consular contracts
Capacity of Contracting
Parties
Exception
Alienation & encumbrance
of property
Intrinsic validity (including
interpretation of the
instruments, and amt. of
damages for breach)
Other Theories are:
1.
2.
3.
4.
5.
6.
7.
Lex loci celebrationis (defect: this makes possible the evasion of the
national law)
Lex nationalii (defect: this may impede commercial transactions)
Lex loci solutionis (law of the place of performance) (defect: there may be
several places of performance
Prof Minors solution:
Perfection lex loci celebrationis
Cause or consideration lex loci considerations
Performance lex loci solutionis (defect: this theory combines the defect
of the others)
Rules on Torts
FACTUAL SITUATION
POINT OF CONTACT
Rules on Crimes
FACTUAL SITUATION
Essential elements of a crime
and penalties
POINT OF CONTACT
Generally where committed (locus regit
actum)
Frustrated an
consummated, homicide,
murder, infanticide &
parricide
Bigamy
Conspiracy to commit
treason, rebellion, or
seditionNOTE: Other
conspiracies are NOT
penalized by our laws
Libel
Continuing crime
Complex crime
POINT OF CONTACT
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
Lex fori
Domicile
Creation of branches in
the RP; validity & effect of
the branches commercial
transaction; & the
jurisdiction of the court
Domicile
Receivers
Foundations (combination of
capital independent of
individuals, usually not for
profit)