Conflicts of Law Memory Aid

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). DISTINGUISHED FROM PUBLIC INTERNATIONAL LAW BASIS 1 Nature 2 Persons involved

CONFLICT OF LAW Municipal in character Dealt with by private individuals; governs individuals in their private transactions which involve a foreign element

3 Transactions involved

Private transactions between private individuals

4 Remedies and Sanctions

Resort to municipal tribunals

LAW OF NATIONS International in character Sovereign states and other entities possessing international personality, e.g., UN; governs states in their relationships amongst themselves Generally affected by public interest; those in general are of interest only to sovereign states 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: 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) 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 all commercial 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 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-conveniens DOCTRINE 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 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 • 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 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 (b) The foreign law is procedural in nature (c) 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 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

b.

APPLY FOREIGN LAW - when properly pleaded and proved

THEORIES WHY FOREIGN LAW SHOULD BE GIVEN EFFECT 1.

Theory of Comity – foreign law is applied because of its convenience & because we want to give protection 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 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 law

4.

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 laws”

5.

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 so

RULES ON STATUS IN GENERAL 1 2 3 4 5 6 7

FACTUAL SITUATION Beginning of personality of natural person Ways & effects of emancipation Age of majority Use of names and surnames Use of titles of nobility Absence Presumptive death & survivorship

POINT OF CONTACT National law of the child (Article 15, CC) Same Same Same Same Same Lex fori (Article 43, 390, 391, CC; Rule

131 §5 [jj], Rules of Court)

Celebrated in RP

Celebrated Abroad

RULES ON MARRIAGE AS A CONTRACT FACTUAL SITUATION Between Filipinos

Between Foreigners

Mixed Between Foreigners

Mixed

POINT OF CONTACT 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 Lex loci celebrationis EXCEPT if the marriage is: a. Highly immoral (like bigamous/ polygamous marriages) b. Universally considered incestuous (between brother-sister, and ascendants-descendants) Apply 1 (b) to uphold validity of marriage National law (Article 21, FC) PROVIDED the marriage is not highly immoral or universally considered incestuous) National law of Filipino (otherwise public policy may be militated against)

Marriage by proxy (NOTE: a marriage Lex loci celebrationis (with prejudice to by proxy is considered celebrated where the foregoing rules) the proxy appears RULES ON MARRIAGE AS A STATUS FACTUAL SITUATION POINT OF CONTACT 1 Personal rights & obligations between National of husband husband & wife (Note: Effect of subsequent change of nationality: a. If both will have a new nationality – the new one b. If only one will change – the last common nationality c. If no common nationality – nationality 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)

Exceptions

RULES ON PROPERTY FACTUAL SITUATION REAL PROPERTY Successional rights

POINT OF CONTACT Lex rei sitae (Article 16, CC) 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 or lex 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 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 of proper 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 example concerning 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 means

Law of the depot (storage place for supplies or resting place)

3 THINGS IN TRANSITU (THESE THINGS HAVE A CHANGING STATUS BECAUSE THEY MOVE) Loss, destruction, deterioration Validity & effect of the seizure of the goods Disposition or alienage of the goods

Law of the destination (Article. 1753, CC) Locus regit actum (where seized) – because said place is their temporary situs Lex loci volutantis or lex loci intentionis – because here there is a contract

FACTUAL SITUATION INTANGIBLE PERSONAL PROPERTY (CHOSES IN ACTION) 1 Recovery of debts or involuntary assignment of debts (garnishment) 2 Voluntary assignment of debts

3 4 5

6 7 8

9 10 11 12 13

POINT OF CONTACT Where debtor may be effectively served with summons (usually the domicile) Lex loci voluntatis or lex loci intentionis (proper law of the 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 Taxation of debts Domicile of creditor Administration of debts Lex situs of assets of the debtor (for these assets can be held liable for the debts) 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) Validity of transfer, delivery or In general, situs of the instrument at the negotiation of the instrument time of transfer, delivery or negotiation Effect on a corporation of the sale of Law of the place incorporation corporate shares 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) Taxation on the dividends of corporate Law of the place of incorporation shares Taxation on the income from the sale of Law of the place where the sale was corporate shares consummated Franchises Law of the place that granted them Goodwill of the business & taxation Law of the place where the business is thereto carried on 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

Wills, Succession & Administration of Conflict Rules FACTUAL SITUATION POINT OF CONTACT EXTRINSIC VALIDITY OF WILLS 1 Made by an alien abroad Lex nationalii OR lex domicilii OR RP law (Article 816, CC), OR lex loci celebrationis (Article 17(1)) 2 Made by a Filipino abroad Lex nationalii OR lex loci celebrationis (Article 815) 3 Made by an alien in the RP Lex nationalii OR lex loci celebrationis (Article 817)

FACTUAL SITUATION EXTRINSIC VALIDITY OF JOINT WILLS (MADE IN THE SAME INSTRUMENT) 1 Made by Filipinos abroad 2 Made by aliens abroad 3 Made by aliens in the RP

INTRINSIC VALIDITY OF WILLS CAPACITY TO SUCCEED REVOCATION OF WILLS 1 If done in the RP

POINT OF CONTACT Lex nationalii (void, even if valid where made) (Article 819) Valid if valid according to lex domicilii or lex loci celebrationis (Article 819) 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 Lex nationalii of the deceased – regardless of the LOCATION & NATURE of the property (Article 16 (2)) Lex nationalii of the deceased – not of the heir (Article 1039) Lex loci actus (of the revocation) (Article. 829)

2 If done OUTSIDE the RP a. By a NON-DOMICILIARY

Lex loci celebrationis (of the making of the will, NOT revocation), OR lex domicilii (Article 829)

b. By a DOMICILIARY of the RP

Lex domicilii (RP law) OR lex loci actus (of the revocation) (Article 17)

PROBATE OF WILLS MADE ABROAD 1 If not yet probated abroad

2 If already probated abroad

EXECUTORS AND ADMINISTRATORS 1 Where appointed 2 Powers

Lex fori of the RP applies as to the procedural aspects, i.e., the will must be fully probated here & due execution must be shown Lex fori of 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 Place where domiciled at death or incase of non-domiciliary, where assets are found 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 nonsuccessive cases

RULES ON OBLIGATION AND CONTRACTS FACTUAL SITUATION FORMAL OR EXTRINSIC VALIDITY Exceptions

POINT OF CONTACT Lex loci celebrationis (Article 17 {1})

a. Alienation & encumbrance of property

Lex situs (Article 16 [1])

b. Consular contracts

Law of the RP (if made in RP consulates) National law (Article 15) without prejudice to the case of Insular Government v Frank 13 P 236, where the SC adhered to the theory of lex loci celebrationis

CAPACITY OF CONTRACTING PARTIES

Exception Alienation & encumbrance of property INTRINSIC VALIDITY (INCLUDING INTERPRETATION OF THE INSTRUMENTS, AND AMT. OF DAMAGES FOR BREACH)

Lex situs (Article 16 {1}) Proper law of the contract – lex contractus (in the broad sense), meaning the lex voluntatis or lex loci intentionis

OTHER THEORIES ARE: a. Lex loci celebrationis (defect: this makes possible the evasion of the national law) b. Lex nationalii (defect: this may impede commercial transactions) c. Lex loci solutionis (law of the place of performance) (defect: there may be several places of performance d. Prof Minor’s solution: i. Perfection – lex loci celebrationis ii. Cause or consideration – lex loci considerations iii. Performance – lex loci solutionis (defect: this theory combines the defect of the others) RULES ON TORTS FACTUAL SITUATION 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 act began; in common law countries, it is where the act first became effective

RULES ON CRIMES FACTUAL SITUATION ESSENTIAL ELEMENTS OF A CRIME AND PENALTIES

POINT OF CONTACT Lex loci delicti (law of the place where the delict was committed) NOTE: liability for foreign torts may be enforced in the RP if: a. The tort is not penal in character b. If the enforcement of the tortious liability won’t contravene our public policy c. If our judicial machinery is adequate for such enforcement POINT OF CONTACT Generally where committed (locus regit actum)

THEORIES AS TO WHAT COURT HAS JURISDICTION: a. Territoriality theory – where the crime was committed b. Nationality theory – country which the criminal is citizen or a subject 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 THE LOCUS DELICTI OF CERTAIN CRIMES 1 Frustrated an consummated, homicide, Where the victim was injured (not where murder, infanticide & parricide 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 the crime) 5 Estafa or swindling thru false Where the object of the crime was representation received (not where the false representations were made) 6 Conspiracy to commit treason, rebellion, Where the conspiracy was formed (not or sedition where the overt act of treason, rebellion NOTE: Other conspiracies are NOT or sedition was committed) penalized by our laws 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 FACTUAL SITUATION CORPORATIONS Powers and liabilities

POINT OF CONTACT General rule: the law of the place of incorporation EXCEPTIONS: a. For constitutional purposes – even of the corporation was incorporated in the RP, it is nor deemed a Filipino corporation & therefore can’t acquire land, exploit our natural resources, 7 operate public utilities unless 60% of capital if Filipino owned b. For wartime purposes – we pierce the corporation veil & go to the nationality of the controlling stockholders to determine if the

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 officers Validity of corporate acts & contracts (including ultra vires acts) Right to sue & amenability to court processes & suits against it Manner & effect of dissolution

corporation is an enemy (CONTROL TEST) Law of the place of incorporation

Law of the place of incorporation & law of the place of performance (the act or contract must be authorized by BOTH laws) Lex fori

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: a. Law of the place of incorporation (this is generally the RP rule) b. Law of the place or center of management (center for administration or siege social) (center office principle) c. Law of the place of exploitation (exploitation centre or siege d’ exploitation) 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 rd partners to 3 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)