Civil Law (Conflicts of Laws)

7/30/2019 Civil Law (Conflicts of Laws)

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Civil Law (Conflict of Laws) Memory AidCONFLICTS OF LAWS; Definition:

1. That part of the law of each state or nation which determines whether, in dealing with a legalsituation, 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, whenconfronted 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

2

Persons

involved

Dealt with by private individuals;

governs individuals in their

private transactions which

involve a foreign element

Sovereign states and other

entities possessing international

personality, e.g., UN; governs

states in their relationships

amongst themselves

3

Transactions

involved

Private transactions between

private individuals

Generally affected by public

interest; those in general are of

interest only to sovereign states

4

Remedies

and

Sanctions Resort to municipal tribunals

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:
http://lawphilreviewer.wordpress.com/2011/12/20/civil-law-conflict-of-laws-memory-aid/http://lawphilreviewer.wordpress.com/2011/12/20/civil-law-conflict-of-laws-memory-aid/


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1. Constitutions

2. Codifications

1. Special Laws2. Treaties and Conventions3. Judicial Decisions4. International Customs

Indirect:

1. Natural moral law

1. Work of writersTERMS:

Lex Domiciliilaw 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 allcommercial 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


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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-conveniensDOCTRINE 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 state1. 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 wherethey are situated and testamentary succession governed by lex nationalii

Article 829 of the Civil Code makes revocation done outside Philippines valid according to lawof 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 foreigncountry

1. ii. The proper foreign law was not properly pleaded and provedNOTICE AND PROOF OF FOREIGN LAW

As a general rule, courts do not take judicial notice of foreign laws; Foreign laws must bepleaded 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 lawExceptions 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)


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(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 provedTHEORIES WHY FOREIGN LAW SHOULD BE GIVEN EFFECT

1. Theory of Comity foreign law is applied because of its convenience & because we want togiveprotection 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 havebeen 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 notbecause 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 theforeign 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 ofjustice; 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


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5 Use of titles of nobility Same

6 Absence Same

7 Presumptive death & survivorship

Lex fori(Article 43, 390, 391, CC; Rule 131

5 [jj], Rules of Court)

Rules on Marriage as a Contract

FACTUAL SITUATION POINT OF CONTACT

Celebrated

Abroad

Between Filipinos

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 marriages

Between Foreigners

Lex loci celebrationisEXCEPTif the

marriage is:

1. Highly immoral (like bigamous/polygamous marriages)

2. Universally considered incestuous(between brother-sister, andascendants-descendants)

Mixed Apply 1 (b) to uphold validity of marriage

Celebrated

in RP

Between Foreigners

National law (Article 21, FC) PROVIDED

the marriage is not highly immoral or

universally considered incestuous)

Mixed

National law of Filipino (otherwise public

policy may be militated against)

Marriage by proxy (NOTE: a marriage by

proxy is considered celebrated where the

proxy appears

Lex loci celebrationis (with prejudice to

the foregoing rules)

Rules on Marriage as a Status


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1

Personal rights & obligations between

husband & wife

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 lastcommon nationality

3. If no common nationalitynationality of husband at the time

of wedding)

2 Property relations bet husband & wife

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 the DOCTRINE OF

IMMUTABILITY IN THE MATRIMONIAL

PROPERTY REGIME)

Rules on Property


Real property Lex rei sitae (Article 16, CC)

Exceptions

Successional rights

National law of decedent (Article 16 par.

2, CC)

Capacity to succeed National law of decedent (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 orlex 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


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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 ofproper cause or consideration), although by

itself, the mortgage could have been valid.

Tangible personal property (choses in possession)

1 In General Lex rei sitae (Article. 16, CC)

Exceptions: same as those for real

property

EXCEPTION: same as those for real

property EXCEPT that in the exampleconcerning mortgage, the same must be

changed to pledge of personal property)

2

Means of Transportation

Vessels

Law of the flag (or in some cases, place of

registry)

Other meansLaw of the depot (storage place forsupplies or resting place)

3

Things in transitu (these things have a

changing status because they move)

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

Validity & effect of the seizure of the

goods

Locus regit actum (where seized)

because said place is their temporarysitus

Disposition or alienage of the goods

Lex loci volutantis or lex loci intentionis

because here there is a contract


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INTangIBLE PERSONAL PROPERTY (CHOSES IN

ACTION)

1

Recovery of debts or involuntary

assignment of debts (garnishment)

Where debtor may be effectively served

with summons (usually the domicile)

2 Voluntary assignment of debts

Lex loci voluntatis or lex loci

intentionis(proper law of the contract)

Other Theories:

1. National law of the debtor or creditor2. Domicile of the debtor or creditor3. Lex loci celebrationis4. Lex loci solutionis

3 Taxation of debts Domicile of creditor

4 Administration of debts

Lex situs of assets of the debtor (for these

assets can be held liable for the debts)

5

Negotiability or non-negotiability of an

instrument

The right embodied in the instrument (forexample, in the case of a Swedish bill of

exchange, Swedish law determines its

negotiability)

6

Validity of transfer, delivery or

negotiation of the instrument

In general, situs of the instrument at the

time of transfer, delivery or negotiation

7

Effect on a corporation of the sale of

corporate shares Law of the place incorporation

8

Effect between the parties of the sale of

corporate shares

Lex 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)


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9

Taxation on the dividends of corporate

shares Law of the place of incorporation

10

Taxation on the income from the sale of

corporate shares

Law of the place where the sale was

consummated

11 Franchises Law of the place that granted them

12

Goodwill of the business & taxation

thereto

Law of the place where the business is

carried on

13

Patents, copyrights, trademarks, trade

names

In the absence of a treaty, they are

protected only by the state that grantedthem

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, Succession & Administration of Conflict Rules


Extrinsic Validity of Wills

1 Made by an alien abroad

Lex nationaliiOR lex domiciliiOR RP law

(Article 816, CC), OR lex loci

celebrationis(Article 17(1))

2 Made by a Filipino abroad

Lex nationaliiOR lex loci

celebrationis(Article 815)

3 Made by an alien in the RPLex nationaliiOR lex locicelebrationis(Article 817)



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Extrinsic Validity of Joint Wills (made in the

same instrument)

1 Made by Filipinos abroad

Lex nationalii(void, even if valid where

made) (Article 819)

2 Made by aliens abroad

Valid if valid according to lex

domiciliiorlex loci celebrationis (Article

819)

3 Made by aliens in the RP

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

Intrinsic Validity of Wills

Lex nationaliiof the deceased regardless

of the LOCATION & NATURE of the

property (Article 16 (2))

Capacity to Succeed

Lex nationaliiof the deceased not of the

heir (Article 1039)

Revocation of Wills

1 If done in the RP

Lex loci actus (of the revocation) (Article.

829)

2

If done OUTSIDE the RP

1. By a NON-DOMICILIARY

Lex loci celebrationis (of the making of the

will, NOT revocation), OR lex

domicilii(Article 829)

1. By a DOMICILIARY of the RPLex domicilii(RP law) OR lex loci actus (of

the revocation) (Article 17)

Probate of Wills Made Abroad


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1 If not yet probated abroad

Lex foriof the RP applies as to the

procedural aspects, i.e., the will must be

fully probated here & due execution must

be shown

2 If already probated abroad

Lex 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

1 Where appointed

Place where domiciled at death or incase

of non-domiciliary, where assets are

found

2 Powers

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,domiciliary, or ancillary administrators &

receivers even in non-successive cases

Rules on Obligation and Contracts


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

Exceptions

1. Alienation & encumbrance ofproperty

Lex situs (Article 16 [1])

1. Consular contracts Law of the RP (if made in RP consulates)Capacity of Contracting Parties

National law (Article 15) without prejudice


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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 property Lex situs (Article 16 {1})

Intrinsic validity (including interpretation of the

instruments, and amt. of damages for breach)

Proper law of the contractlex

contractus(in the broad sense), meaning

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. Perfectionlex loci celebrationis6. Cause or considerationlex loci considerations7. Performancelex loci solutionis (defect: this theory combines the defect of the others)

Rules on Torts


Liability & damages for torts in general

NOTE: The locus delicti (place of commission

of torts) is faced by the problem of

characterization. In civil law countries,

the locus delicti is generally where the actbegan; in common law countries, it is where the

act first became effective

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 character2. If the enforcement of the tortious

liability wont contravene our public

policy3. If our judicial machinery is adequate

for such enforcement

Rules on Crimes



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Essential elements of a crime and penalties

Generallywhere 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 territory

4. Protective theory any state whose national interests may be jeopardized hasjurisdiction so that it may protect itself

5. Cosmopolitan or universality theory state where the criminal is found or which has hiscustody has jurisdiction

6. Passive personality theory the state of which the victim is a citizen or subject hasjurisdiction

NOTE: In the RP, we follow the territoriality theory in general; exception: Article 2, RPC, stressesthe protective theory

The locus delictiof certain crimes

1

Frustrated an consummated, homicide,

murder, infanticide & parricide

Where the victim was injured (not where

the aggressor wielded his weapon)

2 Attempted 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

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 thecrime)

5

Estafa or swindling thru false

representation

Where the object of the crime was

received (not where the false

representations were made)


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6

Conspiracy to commit treason, rebellion,

or sedition

NOTE: Other conspiracies are NOT

penalized by our laws

Where the conspiracy was formed (not

where the overt act of treason, rebellion

or sedition was committed)

7 Libel Where published or circulated

8 Continuing crime

Any place where the offense begins, exists

or continues

9 Complex crime

Any place where any of the essential

elements of the crime took place

Rules on Juridical Persons


Corporations

Powers and liabilities

General rule: the law of the place of

incorporation

EXCEPTIONS:

1. For constitutional purposes evenof 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 piercethe corporation veil & go to the

nationality of the controlling

stockholders to determine if thecorporation is an enemy (CONTROL

TEST)

Formation of the corporation (requisites);

kind of stocks, transfer of stocks to bind

the corporation, issuance, amount &Law of the place of incorporation


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legality & dividends, powers & duties of

members, stockholders and officers

Validity of corporate acts & contracts

(including ultra vires acts)

Law of the place of incorporation & law of

the place of performance (the act orcontract must be authorized by BOTH

laws)

Right to sue & amenability to court

processes & suits against it Lex fori

Manner & effect of dissolution

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. 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 dexploitation)

Partnerships

The existence or non-existence of legal

personality of the firm; the capacity to

The personal law of the partnership, i.e.,

the law of the place where it was created


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contract; liability of the firm & the

partners to 3rd persons

(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 court

RP law (law of the place where brancheswere created) (Article 15, Code of

Commerce)

Dissolution, winding up, & termination of

branches in the RP RP law (Article 15, Code of Commerce)

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. 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

independent of individuals, usually not for

profit)

Personal law of the foundation (place of

principal center of administration)

Reference:

Civil Law (Conflict of Laws) Memory Aid

Ateneo Central Bar Operations 2001

Civil Law (Conflicts of Laws)

Documents

Transcript of Civil Law (Conflicts of Laws)