CHAPTER 5: NATURE AND COMPOSITION OF CONFLICTS RULES

CONFLICTS RULES (PRIVATE INTERNATIONAL LAW)

These are the provisions found in a countrys own law which govern
factual situations possessed of a foreign element.
Purely Internal Rule v. Conflicts Rule:
PURELY INTERNAL RULE
It governs purely domestic problem;
without foreign element
It directly answers a given problem

CONFLICTS RULE
It applies when the factual situation
involves a foreign element
It merely indirectly responds by
indicating whether internal or foreign
law is to be applied

Kinds of Conflicts Rules:

1. ONE-SIDED RULE (UNILATERAL RULE)
It indicates when Philippine internal law will apply
2. ALL-SIDED RULE (MULTILATERAL RULE)
It indicates when foreign law is to be applied
Composition of Conflicts Rules:
1. FACTUAL SITUATION
The set of facts presenting a conflicts problem
2. POINT OF CONTACT/ CONNECTING FACTOR
The law of the country with which the factual situation is most
intimately connected

CHAPTER 6: THE CHARACTERIZATION OF CONFLICTS RULES

CHARACTERIZATION
It is the process of determining under what category a certain set of
facts or rules fall
It is the process of deciding whether or not the facts relate to the kind
of question specified in a conflicts rule
Purpose: To enable the forum to select the proper law

Factors which give rise to the problem of Characterization:

1) Different legal systems attach to the same legal term with different
meanings, that is, an identity of name covers a difference of nature or
content of a legal idea.
2) Different legal systems may contain ideas or conceptions completely
unknown to one another.
3) Different legal systems apply different principles for the solution of
problems which, in general terms, are of a common nature.
Steps in Characterization:
1) Determination of the facts involved
2) Characterization of the factual situation
3) Determination of the conflicts rule which is to be applied
4) Characterization of the point of contact or the connecting factor
5) Characterization of the problem as procedural or substantive
6) The pleadings and proving of the proper foreign law
7) The application of the proper foreign law to the problem
Theories on Characterization:
1. LEX FORI THEORY
The forum merely considers its own concepts, its own
characterization, otherwise, there will be a virtual surrender of
sovereignty right in the forums own home
2. LEX CAUSAE THEORY
Follow the characterization of the foreign state which is the
principal point of contact
3. UNIVERSAL ANALYTICAL THEORY (COMPARATIVE APPROACH
THEORY)
Characterization comes only after a general comparative
analytical study of the jurisprudence of all the states involved
4. DUAL THEORY OF LEX FORI AND LEX CAUSAE
Instead of considering worldwide conceptions, only two
concepts enter into the picture the characterization of the lex
fori and that of lex causae
5. AUTONOMOUS THEORY

6.

Characterization of the country referred to in the conflicts rule

of the lex causae
TOTALITY THEORY
Get the characterization intended by the parties; get the law
intended by the parties to apply, and then proceed to apply
the characterization given by that intended law.

CHAPTER 7: THE VARIOUS THEORIES ON STATUS AND CAPACITY

STATUS
It is the place of an individual in society, and consists of personal
qualities and relationships, more or less permanent, with which the
state and the community are concerned.
It is a personal quality of relationship, not temporary in nature nor
terminable at the mere will of the parties, with which third persons and
the state are concerned. Prof. Beale
Characteristics:
1. It is conferred principally by the state not by the individual.
2. It is a matter of public or social interest.
3. It being a concept of social order, cannot be easily be
terminated at the mere will or desire of the parties concerned.
4. It is generally supposed to have universal character: when a
certain status is created by the law of one country, it is
generally judicially recognized all over the world.

It is the law that attached to an individual, wherever he may go a law

that generally governs his status, his capacity, his family relations, and
the consequences of his actuations
It may be his national law or his domiciliary law or the law of the situs,
depending upon the theory applied and enforced in the forum.

Theory on Personal Law or the Law that Should Govern Status and Capacity in
General
1. NATIONALITY THEORY (PERSONAL THEORY)
The status and capacity of an individual are generally
governed by the law of his nationality
2. DOMICILIARY THEORY (TERRITORIAL THEORY)
Regards the law of the domicile as the proper determinative
law on status and capacity
3. SITUS THEORY (ECLECTIC THEORY)
Views the particular place or situs of an event or transaction
as generally the controlling law

CHAPTER 9: THE DOMICILIARY THEORY

DOMICILIARY THEORY
In general the status, condition rights, obligations, and capacity of a
person should be governed by the law of his domicile.
Domicile v. Citizenship/Nationality:

CAPACITY
It is merely a part of status, and may be defined as the sum total of his
rights and obligations.
2 Kinds:
1. Capacity to Act (Active Capacity)
Power to do acts with legal effects
2. Juridical Capacity (Passive Capacity)
The fitness to be the subject of legal relations

DOMICILE
CITIZENSHIP/NATIONALITY
Ones permanent place of abode
It indicate ties of allegiance or loyalty
* A person may be a citizen/national of one state without being a domiciliary
thereof.
* One may possess his domicile in one state without necessarily being a citizen
or national thereof.
DOMICILE

PERSONAL LAW

It is that place where a person has certain settled, fixed, legal relations
because:
a) Domicile of Origin (Domicilium Origins) - It is assigned to
him also by the law at the moment of birth
b) Constructive Domicile/ Domicile by Operation of Law
(Domicilium Necesarium) It is assigned to him by law after
birth on account of legal disability
c) Domicile of Choice that to which, whenever he is absent,
he intends to return

Domicile of Origin v. Constructive Domicile

Domicile of Origin
Acquired at birth
Applies only to infants

Never changes
Fixed by law

Constructive Domicile
Given after birth
Refers to all those who lack capacity
to choose their own domicile. Legal
disabilities prevent their making a
choice
May change from time to time,
depending upon circumstances
Fixed by law and a result of the
voluntary will and action of the
person concernced

CHAPTER 10: THE SITUS OR ECLECTIC THEORY

SITUS OR ECLECTIC THEORY
The capacity, legal condition, or status of an individual should be
governed not necessarily by the law of his nationality nor by the law of
his domicile but by the law of the place (situs) where an important
element of the problem occurs or is situated.
2 Kinds of Participation:
a) If active (he does the act voluntarily)
Governing law is the law of the actual situs (the place
of the transaction or event)

b)

If passive (effects of the act are set forth in the law)

Governing law is the law of the legal situs (domicile)

CHAPTER 11: THE PROBLEM OF THE RENVOI

RENVOI
Means a referring back; the problem arises when there is doubt as to
whether a reference to a foreign law:
a) Is a reference to the internal law of said foreign law; or
b) Is a reference to the whole of the foreign law, including its
conflicts rules.
If one state involved follows the nationality theory,
and the other, the domiciliary theory, there is a
possibility that the problem may be referred back to
the law of the first state.
Proposed Solutions:
A. REJECT THE RENVOI
We do not want the problem to be sent back to us; we do not
want the matter to be referred back to us
Apply foreign internal law
B. ACCEPT THE RENVOI
Single renvoi - The reference is made to the whole of the
foreign law, including its conflicts rule. Inasmuch as the
foreign conflicts rule refer the matter back to the law of
domicile, rights shall be determined by our internal law
Apply our internal law
C.

FOLLOW THE THEORY OF DESISTMENT (MUTUAL-DISCLAIMER OF

JURISDICTION THEORY)
We desist or refrain from applying foreign law
We found the foreign law inadequate because it is founded
on a different basis, and so we desisted from applying it.
Apply our internal law
D. USE THE FOREIGN COURT THEORY

The Philippine court, in deciding the case, will put itself in the
position of the foreign court; and whatever the foreign court
will do respecting the case the Philippine court will likewise
do.
Advantage: Regardless of the forum, the applicable law will
be the same.
Disadvantage: International pingpong, international football,
revolving doors and inextricable circle, etc.
o If we follow the foreign court theory and the other
country follows the same theory, the result would ne
we would do what the other country would do and
vice versa.
Foreign court may:

i.

Reject the renvoi

ii.

Accept the renvoi

Apply our internal law

Apply foreign internal law
Double renvoi

iii.

Follow desistment theory

iv.

Follow the foreign court theory itself

Apply foreign internal law

Vicious cycle adverted to as international
pingpong

DOUBLE RENVOI
It occurs when the local court, in adopting the foreign court theory,
discovers that the foreign court accepts the renvoi.
TRANSMISSION
It is the process of applying the law of a foreign state thru the law of a
second foreign state.
Double Renvoi v. Transmission:
DOUBLE RENVOI
Deals with 2 countries
Deals with referring back

TRANSMISSION
Deals with 3 or more countries
Deals with a transmitting

Argument in Favor Of Each of the Proposed Solution for Renvoi:

PRO
CONTRA
Rejection
Unless we reject the renvoi,
Our conflicts rules merely
of Renvoi
we shall in a sense be
say that a certain foreign law
surrendering our legislative
will be applied: it does not
sovereignty, or we shall be
distinguish whether said
applying not our own
foreign law is an internal
conflicts rules but the
rule/conflict rule.
conflicts rules of foreign
states.
Acceptance It would result in a harmony
If all countries accept the
of Renvoi
of decisions, irrespective of
renvoi, the result will not be
forum.
harmony, but discord- for
ultimately, each country will
apply its own internal law.
Indeed, harmony would
result only if one state
accepts the renvoi, and the
other rejects it.
Desistment
Same as acceptance of renvoi.
Theory
Foreign
This generally produces a
The theory, if adopted by
Court
harmony of decisions; as a
both the forum and the
Theory
matter of fact, it was
foreign court will cause an
specifically designed to
international pingpong
combat the defects of the
single renvoi.