Civil Law (Conflicts of Laws)

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


    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).



    1 Nature Municipal in character International in character




    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




    Private transactions between

    private individuals

    Generally affected by public

    interest; those in general are of

    interest only to sovereign states




    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.


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


    1. Constitutions

    2. Codifications

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


    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


    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.


    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:


    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


    (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 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




    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