Civil Law Conflict ofLawsDEC 20Posted byMagzCONFLICTS 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 LAWBASISCONFLICT OF LAWLAW OF NATIONS

1NatureMunicipal in characterInternational in character

2Persons involvedDealt with by private individuals; governs individuals in their private transactions which involve a foreign elementSovereign states and other entities possessing international personality, e.g., UN; governs states in their relationships amongst themselves

3Transactions involvedPrivate transactions between private individualsGenerally affected by public interest; those in general are of interest only to sovereign states

4Remedies and SanctionsResort to municipal tribunalsMay be peaceful or forciblePeaceful: includes diplomatic negotiation, tender & exercise of good offices, mediation, inquiry & conciliation, arbitration, judicial settlement by ICJ, reference to regional agenciesForcible: includes severance of diplomatic relations, retorsions, reprisals, embargo, boycott, non-intercourse, pacific blockades, collective measures under the UN Charter, and war.

SOURCES:Direct:1. Constitutions2. Codifications1. Special Laws2. Treaties and Conventions3. Judicial Decisions4. International CustomsIndirect:1. Natural moral law1. Work of writersTERMS:Lex Domicilii law of the domicile; in conflicts, the law of ones domicile applied in the choice of law questionsLex 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 placeLex 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 madeLex 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 situatedLex 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 situatedLex Loci Actus law of the place where the act was doneLex Loci Celebrationis law of the place where the contract is madeLex Loci Solutionis law of the place of solution; the law of the place where payment or performance of a contract is to be madeLex Loci Delicti Commissi law of the place where the crime took placeLex 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 lawLex Non Scripta the unwritten common law, which includes general and particular customs and particular local lawsLex Patriae national lawRenvoi 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 RPDomiciliary 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-conveniensDOCTRINE OF FORUMNON 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 elsewhere1. Assume jurisdiction and apply either the law of the forum or of another state1. i.A specific law of the forum decrees that internal law should apply1. 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 bylex nationalii Article 829 of the Civil Code makes revocation done outside Philippines valid according to law of the place where will was made orlex domicilii Article 819 of the Civil Code prohibits Filipinos from making joint wills even if valid in foreign country1. 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 forum1. The case falls under any of the exceptions to the application of foreign lawExceptions to application of foreign law:a. The foreign law is contrary to the public policy of the forumb. The foreign law is procedural in naturec. 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 administrativee. The foreign law or judgment is contrary to good morals (contra bonos mores)f. The foreign law is penal in characterg. When application of the foreign law may work undeniable injustice to the citizens of the forumh. When application of the foreign law might endanger the vital interest of the state

2. APPLY FOREIGN LAW when properly pleaded and provedTHEORIES WHY FOREIGN LAW SHOULD BE GIVEN EFFECT1. Theory of Comity foreign law is applied because of itsconvenience& because we want to giveprotectionto our citizens, residents, & transients in our land2. 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 law4. 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 laws5. 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 soRules on Status in GeneralFactual SituationPoint of Contact

1Beginning of personality of natural personNational law of the child (Article 15, CC)

2Ways & effects of emancipationSame

3Age of majoritySame

4Use of names and surnamesSame

5Use of titles of nobilitySame

6AbsenceSame

7Presumptive death & survivorshipLex fori(Article 43, 390, 391, CC; Rule 131 5 [jj], Rules of Court)

Rules on Marriage as a ContractFACTUAL SITUATIONPOINT OF CONTACT

Celebrated AbroadBetween FilipinosLex loci celebrationisis 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 ForeignersLex loci celebrationisEXCEPTif the marriage is:1. Highly immoral (like bigamous/ polygamous marriages)2. Universally considered incestuous (between brother-sister, and ascendants-descendants)

MixedApply 1 (b) to uphold validity of marriage

Celebrated in RPBetween ForeignersNational law (Article 21, FC) PROVIDED the marriage is not highly immoral or universally considered incestuous)

MixedNational law of Filipino (otherwise public policy may be militated against)

Marriage by proxy (NOTE: a marriage by proxy is considered celebrated where the proxy appearsLex loci celebrationis(with prejudice to the foregoing rules)

Rules on Marriage as a StatusFACTUAL SITUATIONPOINT OF CONTACT

1Personal rights & obligations between husband & wifeNational of husband(Note:Effect of subsequent change of nationality:If both will have a new nationality the new oneIf only one will change the last common nationalityIf no common nationality nationality of husband at the time of wedding)

2Property relations bet husband & wifeNational 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 theDOCTRINE OF IMMUTABILITY IN THE MATRIMONIAL PROPERTY REGIME)

Rules on PropertyFACTUAL SITUATIONPOINT OF CONTACT

Real propertyLex rei sitae(Article 16, CC)

ExceptionsSuccessional rightsNational law of decedent (Article 16 par. 2, CC)

Capacity to succeedNational law of decedent (Article. 1039)

Contracts involving real property which do not deal with the title theretoThe law intended will be the proper law of the contract (lex loci voluntantisorlex loci intentionis)

Contracts where the real property is given as securityThe principal contract (usually loan) is governed by the proper law oft the contract (lex loci voluntatisorlex loci intentionis)NOTE: the mortgage itself is governed bylex 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)

1In GeneralLex rei sitae (Article. 16, CC)

Exceptions:same as those for real propertyEXCEPTION: same as those for real property EXCEPT that in the example concerning mortgage, the same must be changed to pledge of personal property)

2Means of Transportation

VesselsLaw of the flag (or in some cases, place of registry)

Other meansLaw of the depot (storage place for supplies or resting place)

3Things intransitu(these things have a changing status because they move)

Loss, destruction, deteriorationLaw of the destination (Article. 1753, CC)

Validity & effect of the seizure of the goodsLocus regit actum(where seized) because said place is their temporarysitus

Disposition or alienage of the goodsLex loci volutantisorlex loci intentionis because here there is a contract

FACTUAL SITUATIONPOINT OF CONTACT

INTangIBLE PERSONAL PROPERTY (CHOSES IN ACTION)

1Recovery of debts or involuntary assignment of debts (garnishment)Where debtor may be effectively served with summons (usually the domicile)

2Voluntary assignment of debtsLex loci voluntatisorlex loci intentionis(proper law of the contract)

Other Theories:National law of the debtor or creditorDomicile of the debtor or creditorLex loci celebrationisLex loci solutionis

3Taxation of debtsDomicile of creditor

4Administration of debtsLex situsof assets of the debtor (for these assets can be held liable for the debts)

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

6Validity of transfer, delivery or negotiation of the instrumentIn general, situs of the instrument at the time of transfer, delivery or negotiation

7Effect on a corporation of the sale of corporate sharesLaw of the place incorporation

8Effect between the parties of the sale of corporate sharesLex 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)

9Taxation on the dividends of corporate sharesLaw of the place of incorporation

10Taxation on the income from the sale of corporate sharesLaw of the place where the sale was consummated

11FranchisesLaw of the place that granted them

12Goodwill of the business & taxation theretoLaw of the place where the business is carried on

13Patents, copyrights, trademarks, trade namesIn 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 RulesFACTUAL SITUATIONPOINT OF CONTACT

Extrinsic Validity of Wills

1Made by an alien abroadLex nationaliiORlex domiciliiOR RP law (Article 816, CC), ORlex loci celebrationis(Article 17(1))

2Made by a Filipino abroadLex nationaliiORlex loci celebrationis(Article 815)

3Made by an alien in the RPLex nationaliiORlex loci celebrationis(Article 817)

FACTUAL SITUATIONPOINT OF CONTACT

Extrinsic Validity of Joint Wills (made in the same instrument)

1Made by Filipinos abroadLex nationalii(void, even if valid where made) (Article 819)

2Made by aliens abroadValid if valid according tolex domiciliiorlex loci celebrationis(Article 819)

3Made by aliens in the RPLex loci celebrationistherefore void even if apparently allowed by Article 817 because the prohibition on joint wills is a clear expression of public policy

Intrinsic Validity of WillsLex nationaliiof the deceased regardless of the LOCATION & NATURE of the property (Article 16 (2))

Capacity to SucceedLex nationaliiof the deceased not of the heir (Article 1039)

Revocation of Wills

1If done in the RPLex loci actus(of the revocation) (Article. 829)

2If done OUTSIDE the RP

1. By a NON-DOMICILIARYLex loci celebrationis(of the making of the will, NOT revocation), ORlex domicilii(Article 829)

1. By a DOMICILIARY of the RPLex domicilii(RP law) ORlex loci actus(of the revocation) (Article 17)

Probate of Wills Made Abroad

1If not yet probated abroadLex foriof the RP applies as to the procedural aspects,i.e., the will must be fully probated here & due execution must be shown

2If already probated abroadLex foriof 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

1Where appointedPlace where domiciled at death or incase of non-domiciliary, where assets are found

2PowersCo-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 ContractsFACTUAL SITUATIONPOINT OF CONTACT

Formal or Extrinsic ValidityLex loci celebrationis(Article 17 {1})

Exceptions

1. Alienation & encumbrance of propertyLex situs (Article 16 [1])

1. Consular contractsLaw of the RP (if made in RP consulates)

Capacity of Contracting PartiesNational law (Article 15) without prejudice to the case of Insular Government v Frank 13 P 236, where the SC adhered to the theory oflex loci celebrationis

Exception

Alienation & encumbrance of propertyLex 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 thelex voluntatisorlex 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 performance4. Prof Minors solution:5. Perfection lex loci celebrationis6. Cause or consideration lex loci considerations7. Performance lex loci solutionis(defect: this theory combines the defect of the others)

Rules on TortsFACTUAL SITUATIONPOINT OF CONTACT

Liability & damages for torts in generalNOTE: Thelocus delicti(place of commission of torts) is faced by the problem of characterization. In civil law countries, thelocus delictiis generally where the act began; in common law countries, it is where the act first became effectiveLex 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 character2. If the enforcement of the tortious liability wont contravene our public policy3. If our judicial machinery is adequate for such enforcement

Rules on CrimesFACTUAL SITUATIONPOINT OF CONTACT

Essential elements of a crime and penaltiesGenerallywhere committed(locus regit actum)

Theories as to what court has jurisdiction:1. Territoriality theory where the crime was committed2. Nationality theory country which the criminal is citizen or a subject3. Real theory any state whose penal code has been violated has jurisdiction, where the crime was committed inside or outside its territory4. Protective theory any state whose national interests may be jeopardized has jurisdiction so that it may protect itself5. Cosmopolitan or universality theory state where the criminal is found or which has his custody has jurisdiction6. Passive personality theory the state of which the victim is a citizen or subject has jurisdictionNOTE: In the RP, we follow the territoriality theory in general; exception: Article 2, RPC, stresses the protective theory

Thelocus delictiof certain crimes

1Frustrated an consummated, homicide, murder, infanticide & parricideWhere the victim was injured (not where the aggressor wielded his weapon)

2Attempted 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

3BigamyWhere the illegal marriage was performed

4Theft & robberyWhere the property was unlawfully taken from the victim (not the place to which the criminal went after the commission of the crime)

5Estafa or swindling thru false representationWhere the object of the crime was received (not where the false representations were made)

6Conspiracy to commit treason, rebellion, or seditionNOTE:Other conspiracies are NOT penalized by our lawsWhere the conspiracy was formed (not where the overt act of treason, rebellion or sedition was committed)

7LibelWhere published or circulated

8Continuing crimeAny place where the offense begins, exists or continues

9Complex crimeAny place where any of the essential elements of the crime took place

Rules on Juridical PersonsFACTUAL SITUATIONPOINT OF CONTACT

Corporations

Powers and liabilitiesGeneral 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 owned2. 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 officersLaw of the place of incorporation

Validity of corporate acts & contracts (includingultra viresacts)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 itLex fori

Manner & effect of dissolutionLaw of the place of incorporation provided that the public policy of the forum is not militated against

DomicileIf 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 centreorsiege 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 3rdpersonsThe 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 courtRP law (law of the place where branches were created) (Article 15, Code of Commerce)

Dissolution, winding up, & termination of branches in the RPRP law (Article 15, Code of Commerce)

DomicileIf 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)

ReceiversRP 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)