Conflict of Laws
Conflict of Laws
Conflict of Laws
CONFLICT OF LAW
LAW OF NATIONS
Nature
Municipal in
character
Persons
involved
Transactions
involved
Private transactions
between private
Generally affected by public interest; those in general are
individuals
of interest only to sovereign states
International in character
SOURCES:
Direct:
1. Constitutions
2. Codifications
1.
2.
3.
4.
Special Laws
Treaties and Conventions
Judicial Decisions
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
i.
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
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. Theory of Comity foreign law is applied because of itsconvenience & 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
Same
Age of majority
Same
Same
Same
Absence
Same
Celebrate
d Abroad
Celebrate
d in RP
POINT OF CONTACT
Between
Filipinos
Between
Foreigners
Mixed
Between
Foreigners
Mixed
Marriage by
proxy (NOTE: a
marriage by
proxy is
considered
celebrated
where the proxy Lex loci celebrationis (with prejudice to
appears
the foregoing rules)
Rules on Marriage as a Status
FACTUAL SITUATION
1
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
Rules on Property
FACTUAL SITUATION
Real property
Exceptions
POINT OF CONTACT
National law of
decedent (Article 16
Successional rights par. 2, CC)
Capacity to
succeed
National law of
decedent (Article.
1039)
Contracts
involving real
property which do
not deal with the
title thereto
Contracts where
the real property
is given as
security
In General
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)
Means of
Transportation
Vessels
Other means
Things
in transitu(these
things have a
changing status
because they
move)
3
Loss, destruction,
deterioration