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CONFLICTS 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).
SOURCES:
DIRECT:
1. Constitutions
2. Codifications
3. Special Laws
4. Treaties and Conventions
5. Judicial Decisions
6. International Customs
INDIRECT:
1. Natural moral law
2. Work of writers
TERMS:
LEX DOMICILII - law of the domicile;
in conflicts, the law of one's 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)
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CIVIL LAW MEMORY AID C O N F L I C T O F L A W S ATENEO CENTRAL BAR OPERATIONS 2002
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 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 DELICTI COMMISSI - law of the place where the crime took place
LEX NON SCRIPTA - the unwritten common law, which includes general and particular
customs and particular local laws
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.
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CIVIL LAW MEMORY AID C O N F L I C T O F L A W S ATENEO CENTRAL BAR OPERATIONS 2002
2. Assume jurisdiction and apply either the law of the forum or of another state
a. 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:
i. A specific law of the forum decrees that internal law should apply
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
ii. The proper foreign law was not properly pleaded and proved
NOTICE AND PROOF OF FOREIGN LAW
(b) Assume that the foreign law of the same as the law of the forum
iii. 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
(c) The case involves issues related to property, real or personal (lex situs)
(e) The foreign law or judgment is contrary to good morals (contra bonos
mores)
(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
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RULES ON PROPERTY
2, CC)
Contracts involving real property which The law intended will be the proper law
do not deal with the title thereto of the contract (lex loci voluntantis or lex
loci intentionis)
Exceptions: same as those for real EXCEPTION: same as those for real
property property EXCEPT that in the example
concerning mortgage, the same must be
changed to pledge of personal property)
2 MEANS OF TRANSPORTATION
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Disposition or alienage of the goods Lex loci volutantis or lex loci intentionis –
because here there is a contract
OTHER THEORIES:
a. National law of the debtor or creditor
b. Domicile of the debtor or creditor
c. Lex loci celebrationis
d. 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 The right embodied in the instrument (for
instrument example, in the case of a Swedish bill of
exchange, Swedish law determines its
negotiability)
6 Validity of transfer, delivery or In general, situs of the instrument at the
negotiation of the instrument time of transfer, delivery or negotiation
7 Effect on a corporation of the sale of Law of the place incorporation
corporate shares
8 Effect between the parties of the sale of Lex loci voluntatis or lex loci intentionis
corporate shares (proper law of the contract) – for this is
really a contract; usually this is the place
where the certificate is delivered)
9 Taxation on the dividends of corporate Law of the place of incorporation
shares
10 Taxation on the income from the sale of Law of the place where the sale was
corporate shares consummated
11 Franchises Law of the place that granted them
12 Goodwill of the business & taxation Law of the place where the business is
thereto carried on
13 Patents, copyrights, trademarks, trade In the absence of a treaty, they are
names protected only by the state that granted
them
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
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CIVIL LAW MEMORY AID C O N F L I C T O F L A W S ATENEO CENTRAL BAR OPERATIONS 2002
a. Lex loci celebrationis (defect: this makes possible the evasion of the national law)
c. Lex loci solutionis (law of the place of performance) (defect: there may be several
places of performance
RULES ON TORTS
RULES ON CRIMES
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c. Real theory – any state whose penal code has been violated has jurisdiction, where
the crime was committed inside or outside its territory
d. Protective theory – any state whose national interests may be jeopardized has
jurisdiction so that it may protect itself
e. Cosmopolitan or universality theory – state where the criminal is found or which has
his custody has jurisdiction
f. Passive personality theory – the state of which the victim is a citizen or subject has
jurisdiction
NOTE: In the RP, we follow the territoriality theory in general; exception: Article 2, RPC,
stresses the protective theory
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CIVIL LAW MEMORY AID C O N F L I C T O F L A W S ATENEO CENTRAL BAR OPERATIONS 2002
EXCEPTIONS:
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CIVIL LAW MEMORY AID C O N F L I C T O F L A W S ATENEO CENTRAL BAR OPERATIONS 2002
Partnerships
The existence or non-existence of legal The personal law of the partnership, i.e.,
personality of the firm; the capacity to the law of the place where it was
contract; liability of the firm & the created (Article 15 of the Code of
partners to 3rd persons Commerce) (Subject to the exceptions
given above as in the case of corps.)
Creation of branches in the RP; validity RP law (law of the place where
& effect of the branches’ commercial branches were created) (Article 15,
transaction; & the jurisdiction of the Code of Commerce)
court
Dissolution, winding up, & termination of RP law (Article 15, Code of Commerce)
branches in the RP
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 Personal law of the foundation (place of
OF INDIVIDUALS, USUALLY NOT FOR PROFIT) principal center of administration)
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