Subject: Conflict of Laws

Professor: Atty. Robles

Transcrpt
1

LEADING CANONS ON CONFLICT OF LAWS:

The laws of every state affect and bind directly all property, real or personal, situated
within its territory, all contracts made and acts done and all persons resident within
its jurisdiction, and are supreme within its own limits by virtue of its sovereignty.

Ambassadors and other public ministers in the state to which they are sent, and
members of an army marching through or stationed in a friendly state, are not
subject to this rule.

Possessing exclusive authority, with the above qualification, a state may regulate the
manner and circumstances under which its property, whether real or personal, in
possession or in action, within it, shall be held, or transmitted, or transferred, by sale,
barter, or bequest, or recovered or enforced; the condition, capacity, and state of all
persons within it; the validity of contracts and other acts done there; the resulting
rights and duties growing out of these contracts and acts; and the remedies and
modes of administering justice in all cases.

Whatever force and obligation the laws of one country have in another depends
upon the laws and municipal regulations of the latter; that is to say, upon its own
proper jurisprudence and polity; and upon its own express or tacit consent.

The power of determining whether, or how far, or with what modification, or upon
what conditions, the laws of one state or any rights dependent upon them shall be
recognized in another, is a legislative one. The comity involved is a comity of the
states, and not of the courts, and the judiciary must be guided in deciding the
questions by rhe principle and policy adopted by the legislature.

When a statute or the unwritten or common of law of the country forbids the
recognition of the foreign law, the latter is of no force whatsoever. When both are
silent, then the question arises, which of the conflicting laws is to have effect. Each
sovereignty must determine for itself whether it will enforce a foreign law.

The revenue laws of one country have no force in another the statutes of one state
giving a right of action to enforce a penalty have no force in another.

Rights of action arising under foreign bankrupt, insolvent, or assignment laws are not
recognized by a state when prejudicial to interests of its own citizens.

A remedy special to a particular foreign state is not, by any principle of comity
enforceable elsewhere and must be applied within the jurisdiction of the partys
domicile.

Generally, force and effect will be given by any state to foreign laws in cases where
from the transactions of the parties they are applicable, unless they affect injuriously
her own citizens, violate her express enactments, or are contra bonus mores.
Subject: Conflict of Laws
Professor: Atty. Robles
Transcrpt
2


In general, the mode of conveying, incumbering [sic], transmitting, devising, and
controlling real estate is governed bt the laws of the place of situation of the
property.

The law governing the mortgage, as such, is the law of the situs of the land which
the mortgage covers; but the debt is governed bt the law of the domicile of the prarty
to whom it is due, no matter where the property be situated; and when the
[unreadable] is invested on the land for which the mortgage is givenm, the lex rei
sitae prevails; for the purposes of taxation ,a debt has its situs at the domicile of the
creditor.

Bills of exchange and promissory notes are to be governed, as to validity and
interpretation, bt the law of the place of making, as are other contracts. The
residence of the drawee of a bill of exchange, and the place of making a promissory
note where no other place of payment is specified, is the locus contractus.

Chattel mortgages valid and dulty registered under the laws of the state in which the
property is situated at the time of the mortage, will be held valid in another state to
which the property Is removed, although the regulations there are different and it will
be enforced in the state to which the property has been removed, although it would
have been invalid if made in that state.

The lex fori determines the remedies on the mortgage.

Questions of priority of laws and other claims are, in general to be determined by the
lex rei sitae even in regard to personal property.

The scope of a marriage settlement made abroad is to be determined b t the lex loci
contractus, where not repugnant to the lex rei sitae.

In an action brought in one state for injuries done in another, the statutes and
decisions of the courts of the latter state must fix the liability.

Executors and administrators, in the absence of a statute authorizing it, have no
power to sue or be sued by virtue of a foreign appointment as such. Guardians have
no power over the property, whether real or personal, of their wards, by virtue of a
foreign appointment, they must have the sanction of the appropriate local tribunal.

Judgments and decrees of foreign courts relating to immovable property within their
jurisdiction are held binding everywhere. And the rule is the same with regard to
movables actually within their jurisdiction. Thus admiralty proceedings in rem are
held conclusive everywhere if the court had a rightful jurisdiction founded on actual
possession of the subject matter.

Subject: Conflict of Laws
Professor: Atty. Robles
Transcrpt
3

Voluntary assignments of personal property, valid where made, will transfer property
everywhere (but not as against citizens of the state of the situs attaching prior to the
assignees obtaining possession)

Discharges by the lex loci contractus are valid everywhere.

AN involuntary assignment by operation of law as under bankrupt or insolvent laws
will not avail as against attacking creditors in the place of situation of the property.
Subject: Conflict of Laws
Professor: Atty. Robles
Transcrpt
4

Theories:

Conflict of laws . . . . .
o Branch of the local municipal law, it rests on a general principle of
territoriality ! that states have the right to regulate the activities and
persons with their territories and conversely, have no right to regulate
conduct/persons beyond their borders
o Based on comity ! the instances of deference to foreign law were seen as
an attempt to promote international harmony by accommodating the laws of a
foreign sovereign in expectation of receiving reciprocal treatment
o Based on vested rights ! there is no exception from the territorial
application of law, since foreign law was never applied as such. Instead, local
law simply recognizes a right that had become vested in an individual under a
foreign law at a time when the individual was subject to foreign law. This
theory emphasizes the individuals entitlement to his/her vested rights rather
than the courts politeness to the foreign sovereign
" Since it is a branch of the local municipal law, that law alone
determines what, if any, relevance and operation would attach to
foreign law. Under this theory, no right is vested in individuals by the
operation of any foreign law alone. Instead, the right becomes
operational only after it was recognized and given effect by the local
law, and the local law alone determines when that would happen.
o Courts should consider whether the local law, which has probably been
developed with local situations in mind, ought to be modified in light of any
foreign element. To determine this, courts should consider the underlying
purpose or policy which the law is intended to further. The courts then have to
ask whether in light of its purpose or policy, the law should be applied. The
courts should engage in a similar exercise in relation to any foreign law that
may be relevant.

Subject: Conflict of Laws
Professor: Atty. Robles
Transcrpt
5

Wharton: Conflict of Laws
Obligations, in respect to the mode of their solemnization, are subject to the rule locus
regit actum; in respect to their interpretation, to the lex loci contractum; in respect to
their mode of performance, to the law of the plae of their performance. But the lex fori
determines when and how such laws, when foreign, are to be accepted, and in all cases
not specified above, supplies the applicatory law.

Sudder v. Bank 23 L. ed. 245
Matters bearing upon the execution, the interpretation, and the validity of a contract are
determined by the law of the place where the contract is made. Matters connected with
its performance are regulated by the law prevailing at the place of performance. Matters
regarding the remedy, such as the bringing of suits, admissibility of evidence, statutes of
limitations, depend upon the law of the place where the suit is brought.

Wharton: Conflict of Laws
A contract, so far as concerns its formal making, is to be determined by the place
where it is solemnized, unless the lex situs of the property disposed of otherwise
requires; so far as concerns its interpretation, by the law of the place where its terms
are settled, unless the parties had the usages of another place in view; so far as
concerns its remedy, by the law of the place of suit; and so far as concerns its
performance, by the law of the place of performance.

Harvard Law Review:
The criterion by which to ascertain whether a particular inquiry relates to the substance
of the contract or the remedy merely is said to be:
Suppose the legislature of the locus contractus to enact the law of the forum,
making it applicable to the existing contract. If the results is that the obligation of the
contract is either increased or impaired thereby, then the point to which the law of the
forum relates is part of the obligation or substance of the contract and is not merely a
matter of remedy, and the lex loci, not the lex fori, should control. If, on the other hand,
the results is that the obligation of the contract is not at all affected, being neither
increased nor diminished, then the inquiry relates to a matter of remedy only, and the
lex fori should govern.

FOREIGN LAW

The laws of a foreign country
The courts do not take judicial notice of foreign laws; and they must, therefore,
be proved as matters of fact and pleaded; written laws, by the text, or a collection
printed by authority, or a copy certified by a proper officer, or, in their absence,
perhaps, by the opinion of experts as secondary evidence; they may be
construed with the aid of textbooks as well as of experts; where experts are
called, the sanction of an oath is said to be required.
In the absence of proof as to what the law of a foreign state or country is, the
court, when it takes judicial notice that the foreign state has fundamentally the
same system of law as that of the forum, will presume that the law of the foreign
Subject: Conflict of Laws
Professor: Atty. Robles
Transcrpt
6

state is the same (exclusive of statutory changes) as that of the law of the forum.
[But in respect to the laws of other foreign countries where a system obtains
wholly different from our own, the rigid proof of testimony of experts alone should
be insisted on.]
Where a statute of another state has been properly brought to the notice of the
court, it will in all future cases take notice of that statute and presume the law of
the foreign state to be the same until some change is shown.
Foreign unwritten laws, customs, and usages may be proved, and are ordinarily
proved, by parol evidence; and when such evidence is objected to on the ground
that the law in question is written law, the party objecting must show that fact.
The manner of proof varies according to the circumstances. As a general rule,
the best testimony or proof is required; for no proof will be received which
presupposes better testimony attainable by the party who offers it. When the best
testimony cannot be obtained, secondary evidence will be received. A foreign law
must be proved like any other fact, and in the absence of such proof, it will be
presumed that the common law prevails in the foreign jurisdiction.
Exemplified or sworn copies of written laws and other public instruments, must,
as a general thing, be produced when they can be procured; but should they be
refused by the competent authorities, their inferior proof may be admitted.
When our own government has promulgated a foreign law or ordinance of a
public nature as authentic, that is held sufficient evidence of its existence.
The usual modes of authenticating them are by exemplification under the great
seal of the state, or by a copy proved by oath to be a true copy, or by a certificate
of an officer authorized by law, which must itself be duly authenticated.
Proof of unwritten law is usually made by the testimony of witnesses learned in
the law and competent to state it correctly under oath.
The public seal of a foreign sovereign or state affixed to a writing purporting to be
a written edict, or law, or judgment, is of itself the highest evidence, and no
further proof is required of such public seal.
Foreign laws have, as such, no extra-territorial force, but have an effect by
comity. In the absence of pleading and proof to the contrary, the laws of another
state are presumed to be like those of the state in which the action is brought.

Page 4
Foreign Judgment:
It is a general rule that foreign judgments are admitted as conclusive evidence of
all matters directly involved in the case decided, where the same question is
brought up incidentally. Such judgments and decrees in rem, whether relating to
immovable property or movables within the jurisdiction of the foreign court, are
binding everywhere.
It seems to be the better opinion that judgments in personam, regular on their
face, which are sought to be enforced in another country, are conclusive
evidence, subject to re-examination, in the courts where the new action is
brought, only for irregularity, fraud, or lack of jurisdiction as to the cause or
parties
Theory of obligation and comity
Subject: Conflict of Laws
Professor: Atty. Robles
Transcrpt
7

o A legal obligation arises in the state where the judgment was rendered,
accompanied by a correlative sanction under which the obligation may be
made effective so long as the defendant is within the jurisdiction of the
foreign court; but when, by his absence from that jurisdiction, the remedy
is no longer available, the obligation will, in another state or country, be
clothed by comity with an auxiliary sanction to replace the correlative
sanction which it has lost.
Hilton v. Guyot 159 U.S. 113
Where an action is brought in a court of this country, by a citizen of a
foreign country, against one of our citizens, to recover a sum of money
adjudged by a court of that country to be due from the defendant to the
plaintiff, and the foreign judgment appears to have been rendered by a
competent court having jurisdiction of the cause and of the parties and
upon due allegations and proofs, and opportunity to defend against them,
and its proceedings are according to the course of a civilized
jurisprudence and are stated in a clear and formal record, the judgment is
prima facie evidence, at least, of the truth of the matter adjudged; and it
should be held conclusive upon the merits tried in the foreign court, unless
some special ground is shown is shown for impeaching the judgment, as
by showing that it was affected by fraud or prejudice, or that, by the
principles of international law, and by comity of our own country, it should
not be given full credit and effect.
Foreign adjudicators as respects torts are not binding.
Foreign judgments may be evidence by exemplifications certified under the great
seal of the state or country where the judgment is recorded, or under the seal of
the court where the judgment remains; by a copy proved to be a true copy, or by
the certificate of an officer authorized by law, which certificate must itself by
properly authenticated
Not only must the foreign court have had jurisdiction over the person, but it must
be appear that the judgment there rendered was responsive to the issue
tendered by the pleadings [see Reynolds v. Stockton 35 L. Ed. 464]
Where the court had jurisdiction of the parties and of the subject matter, fraud in
obtaining the judgment may be set up as a defense, it must be fraud in procuring
the judgment.
Proceedings will lie in equity to enjoin the enforcement of a judgment obtained by
fraud in a foreign state.





Subject: Conflict of Laws
Professor: Atty. Robles
Transcrpt
8

RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS AND ARBITRAL AWARDS

Its a fundamental tenet of territorial sovereignty that the laws and orders of one
sovereign cannot be directly enforced in the territory of another. The corollary is that
all jurisdictions have rules that provide for conversion of foreign orders to local
orders, enforceable by local process.

Nothing prevents a sovereign from waiving the right to require conversion. Similarly,
nothing prevents one state to deny recognition to judgments and orders of all other
states but such a degree of non-cooperation is not considered to be in the self-
interest of the (denying) state

The traditional common law rules require the foreign judgment creditor to persuade
the forum that
o #1) the foreign judgment is final and conclusive
o #2) The foreign court had jurisdiction in the international sense

An action on a foreign judgment at common law has traditionally been viewed as an
action in debt, the debt having been created by the foreign judgment

Another distinction between domestic and foreign judgments is that the doctrine of
res judicata does not apply to foreign judgments. The cause of action is not
considered to have been merged in the foreign judgment. It may be possible,
therefore, for a plaintiff to sue again on the original cause of action, should the
foreign judgment be one not recognizable by the forum.

A foreign court will be considered to have had jurisdiction in the international sense
for purposes of recognition and enforcement of a particular judgment if:
o #1) the defendant was present in the jurisdiction (of the foreign court) at the
time the action was commenced OR
o #2) the defendant voluntarily submitted to the jurisdiction of the foreign court
OR
o #3) there was real and substantial connection between the action and the
jurisdiction

The judgment of a court of competent jurisdiction over the defendant imposes a duty
or obligation on the defendant to pay the sum for which judgment is given, which the
courts of another country are bound to enforce; and consequently, anything which
negatives that duty, or forms a legal excuse for not performing it, is a defense to the
action.
The merits of a foreign judgment, in rem or in personam, are not examinable at all
whether the judgment is relied upon by the plaintiff as a cause of action, or pleaded
by the defendant as a defense. The courts will not permit a re-trial of issues which
have already been decided by the foreign court.

Subject: Conflict of Laws
Professor: Atty. Robles
Transcrpt
9

A final judgment, if rendered by a court of competent jurisdiction and if free from
fraud, is conclusive on the merits and not open to re-examination.

A valid foreign judgment creates a new right in the judgment plaintiff and imposes a
new duty on the judgment defendant, these rights being independent of and distinct
from the causes of action alleged in the suit wherein the judgment was rendered. A
suit on this judgment being one on a new right, it is immaterial whether or not a valid
cause of action existed prior to the judgment

Comity in the legal sense is not:
o A matter of absolute obligation
o A mere courtesy and good will upon the other
However, comity is the recognition which one nation allows within its territory, to the
legislative, executive and judicial acts of another nation, having due regard both to
international duty and convenience, and to the rights of its own citizens or of other
persons who are under the protection of its laws.

If a judgment is pronounced by a foreign court over persons within its jurisdiction and
in a matter with which it is competent to deal, English Courts never investigate the
propriety of the proceedings in the foreign court, UNLESS they offend against
English views of substantial justice. Where no substantial justice, according to
English nations, is offended, all that English courts look to is the #1) finality of the
judgment and #2) the jurisdiction of the court, in this sense and to this extent,
namely, its competence to entertain the sort of case which it did deal with, and its
competence to require the defendant to appear before it, If the court had jurisdiction
in this sense and to this extent, the English courts never inquire whether the
jurisdiction has been properly or improperly exercised, provided always that no
substantial justice has been committed

Courts of England will not enforce the decisions of foreign courts which have no
jurisdiction in the sense above (see above bullet) e.g. #1) over the SM or #2) over
the persons brought before them. BUT the jurisdiction which alone is important in
these matters is the competence of the (foreign) Court in an international sense, i.e.,
its territorial competence over the SM and over the defendant. Its competence or
jurisdiction in any other sense is not regarded as material by the Courts of England

A judgment of a foreign court having jurisdiction over the parties and SM (e.g. having
jurisdiction to summon the defendants before it and to decide such matters as it
decided) cannot be impeached in England on its merits

The common law provides a defendant in an action for recognition and enforcement
of a foreign judgment with a number of possible defenses to wit:
o Judgments based on a foreign penal or revenue laws are not enforceable and
o Foreign judgments that are based on laws that are contrary to the public
policy of the forum
o Foreign judgment obtained by fraud
Subject: Conflict of Laws
Professor: Atty. Robles
Transcrpt
10

o Foreign judgment obtained in breach of natural justice

It is not a defense, however, that the court erred in law, even if the error in law was
one concerning the law of the recognizing court. This is because the court being
asked to recognize a foreign judgment is not sitting as an appellate court.


Subject: Conflict of Laws
Professor: Atty. Robles
Transcrpt
11

DISCRETION TO DECLINE JURISDICTION AND RESTRAINT OF FOREIGN PROCEEDINGS

The basic principle is that each jurisdiction is independent. There is no embargo on
concurrent proceedings in the same matter in more than one jurisdiction. There are
simply these two weapons:
o A stay (or dismissal) of proceedings and
o An anti-suit injunction

Each of these has its limitations. The first depends on the voluntary adoption by the
state in question and the second is inhibited by respect for comity

In order to justify a stay, two conditions must be satisfied:
o #1) the defendant must satisfy the court that there is another forum to whose
jurisdiction he is amenable in which justice can be done between the parties
at substantially less inconvenience of expense and
o #2) the stay must not deprive the plaintiff of a legitimate personal or juridical
advantage w/c would be available to him if he invoked the jurisdiction of the
court

The basic principle is that a stay will only be granted on a the ground of forum non
conveniens where the court is satisfied that there is some other available forum,
having competent jurisdiction which is the appropriate forum for the trial of the action
(e.g.) in which the case may be tried more suitably for the interests of all the parties
and the ends of justice

In general, the burden of proof rests upon the defendant to persuade the court to
exercise its discretion to grant a stay. If the court is satisfied that there is another
available forum which is prima facie the appropriate forum for the trial of the action,
the burden will then shift to the plaintiff to show that there are special circumstances
by reason of which justice requires that the trial should nevertheless take place in
this country.

The courts hesitate to disturb the plaintiffs choice of forum and will not do so unless
the balance of factors is strongly in favor of the defendant.

Where the choice is between competing jurisdictions within a federal state, it is
readily understandable that a strong preference should be given to the forum chosen
by the plaintiff on which jurisdiction has been conferred by the constitution of the
country which includes both alternative jurisdictions.

Since the question is whether there exists some other forum which is clearly more
appropriate for the trial of the action, the court will look first to see what factors there
are which point to the direction of another forum. These are the factors which have
been described as indicating that justice can be done in the other forum at
substantially less convenience and expense.

Subject: Conflict of Laws
Professor: Atty. Robles
Transcrpt
12

Natural forum: that which the action has the most real and substantial connection.

If the court concludes that there is no other available forum which is clearly more
appropriate for the trial of the action, it will refuse a stay.

If the court concludes that there is some other available forum which prima facie is
clearly more appropriate for the trial of the action, it will ordinarily grant a stay unless
there are circumstances by reason of which justice requires that a stay should not be
granted.

The law relating to injunctions restraining a party from commencing legal
proceedings in a foreign jurisdiction has a long history. Certain principles emerged to
wit:
o FIRST, the jurisdiction is to be exercised when the ends of justice require it
o SECOND, where the court decides to grant an injunction restraining
proceedings in a foreign court, its order is directed against the parties
proceeding or threatening to proceed and not against the foreign court
o THIRD, it follows that an injunction will only be issued restraining a party who
is amenable to the jurisdiction of the court against whom an injunction will be
an effective remedy
o FOURTH, since such an order indirectly affects the foreign court, the
jurisdiction is one which must be exercised with caution

As a general rule, the court granting an injunction must conclude that it is the natural
forum for the trial of the action

The courts have developed two forms of remedies to control the choice of the forum
by the parties
o THE FIRST: stay of the proceedings ! This enables the court selected by the
plaintiff (domestic forum) to stay the action at the request of the defendant if
the court is persuaded that the case should be tried elsewhere
o THE SECOND: anti-suit injunction ! It is a more aggressive remedy, which
may be granted by the domestic court at the request of a defendant, actual or
a potential, in a foreign suit.
" In the usual situation, the plaintiff in the domestic court moves to
restrain the defendant from continuing a proceeding in the courts of
another jurisdiction. Occasionally, the defendant in a foreign
jurisdiction who alleges that the plaintiff in that jurisdiction has selected
an inappropriate forum seeks an injunction from the courts of the
alleged appropriate forum, to restrain continuation of the foreign
proceedings. While the restraining order operates in personam on the
plaintiff in the foreign and suit and not on the foreign court itself, it has
the latter effect and therefore raises serious issues of comity.
" Wikipedia: In the area of conflict of laws anti-suit injunction is an
order issued by a court or arbitral tribunal that prevents an opposing
party from commencing or continuing a proceeding in another
Subject: Conflict of Laws
Professor: Atty. Robles
Transcrpt
13

jurisdiction or forum. If the opposing party contravenes such an order
issued by a court, a contempt of court order may be issued by the
domestic court against that party.
" It is often used as a means to prevent forum shopping. In recent years
many jurisdictions have placed a high standard to obtain an injunction
such as where the proceedings are "oppressive or vexatious

Although both the remedy of a stay or injunction have as their main objectives the
selection of an appropriate forum for the trial of the action, there is a fundamental
difference between them.
o In case of the stay, the domestic court determines for itself w in the
circumstances, it should take jurisdiction
o In the case of an injunction, it in effect determines the matter for the foreign
court

An anti-suit injunction should not be granted unless continuing the foreign
proceedings would lead to injustice to the other party or the pursuit of the foreign
proceedings was vexatious or oppressive.

The domestic court should not entertain an application for an injunction if there is no
foreign proceeding pending. It is preferable that the decision of the foreign court not
be pre-empted until a proceeding has been commenced in that court and the
applicant for an injunction in the domestic court has sought from the foreign court a
stay or other termination of the foreign proceedings and FAILED.


Subject: Conflict of Laws
Professor: Atty. Robles
Transcrpt
14

Other notes:

Every legal system reserves an ultimate discretion to exclude the application of the
foreign lex causae
1
normally applicable under its choice of law principles if the result
is offensive the forums public policy. The operation of this exception is not restricted
to the choice of law level because public policy also provides a defense to the
enforcement of foreign decisions and judgments that would otherwise be entitled to
recognition. ! In other words, lex causae will not be applied if public policy will
suffer

Claims and judgments based on foreign sovereign or public rights are also
vulnerable to exclusion. This is well-established in the case of foreign tax and penal
laws

The class of laws which will be enforced are those laws which are an exercise by the
sovereign government of its sovereign authority over property within its territory or
over its subjects wherever they may be.

o But other laws will not be enforced. By international law, every sovereign
state has no sovereignty beyond its own frontiers. The courts of other
countries will not allow to go beyond the bounds. They will not enforce any of
its laws which purport to exercise sovereignty beyond the limits of its authority

The provisions of law of a foreign country do not apply if their application would be
manifestly inconsistent with public order as understood in international relations. To
justify a refusal to recognize a foreign law or decision, the result must be offensive to
the public policy of the forum

Conflict of laws jurisprudence is concerned essentially with the just disposal of
proceedings having a foreign element. The jurisprudence is founded on the
recognition that in proceedings having connections with more than one country, an
issue brought before a court in one country may be more appropriately decided by
reference to the laws of another country even though those laws are different from
the law of the forum court.

The laws of the other country may have adopted solutions, or even basic principles,
rejected by the laws of the forum country. However, these differences do not in
themselves give the forum court the reasons to decline to apply the foreign law. On
the contrary, the existence of differences is the very reason why it may be
appropriate for the forum court to have recourse to the foreign law. If the laws of all
countries were uniform, then there will be no conflict of laws.


1
lex causae (Latin: lex+causa, "cause [for the] law") is the law or laws
chosen by the forum court from among the relevant legal systems to arrive
at its judgment of an international or inter-jurisdictional case
Subject: Conflict of Laws
Professor: Atty. Robles
Transcrpt
15

The court will exclude the foreign decree only when it would violate some
fundamental principles of justice, morals or tradition

The exclusion of foreign penal law has deep roots. The courts of no country execute
the penal laws of another

A decision to assume jurisdiction in a criminal proceeding carries with it a decision to
apply that countrys domestic criminal law to the relevant conduct.

The penal exception is limited to denying a foreign sovereign power to enforce its
criminal laws outside the territory of its enactment. It does not preclude forum
recognition of the relevant law in other contexts

o For example, in extradition, It is commonly made a condition of extradition
that the foreign crime for which extradition is sought also constitute a crime in
the eyes of the lex fori. Extradition is usually also prohibited where the person
whose extradition is sought has already been tried for the same offense in the
territory of the requested state but not apparently in the requesting State.

As regards tax laws, no country ever takes notice of the revenue laws of another.
The revenue or tax exclusion has similarly deep roots to the penal law exclusion. In
no circumstances will the courts directly/indirectly enforce the revenue/tax laws of
another country.

Subject: Conflict of Laws
Professor: Atty. Robles
Transcrpt
16

JURISDICTION IN PERSONAM
The status of an individual is occasionally relevant to questions of jurisdiction. There are
some persons whose status prohibits them from bringing an action and there are some
whose status confers immunity from action.

(isolated transaction; doing business, etc.; carrying on business)

The question whether a foreigner can be a party to proceedings in the English courts is
on to be determined by English law (as the LEX FORI). In the case of an individual no
difficulty usually arises. And the same can be said of foreign legal persons, which would
be recognized as such by the LEX FORI. The novel question is whether a foreign legal
person, which would not be recognized as a legal person by English law can sue in the
English courts. The particular difficulty arises out of English laws restriction of legal
personality to corporations or the like, that is to say the personified groups or services of
individuals.

Theories of territorial sovereignty give to the sovereign the right to control any person
physically present in the territory. The corollary is an absence of power to regulate
persons in other jurisdictions because that would constitute an interference with the
sovereignty of that jurisdiction.

Traditionally, the presence of the dependent written the territorial limits of the court or
less voluntary submission to the authority of the court has forwarded jurisdiction in a
personal action in that court.

A court may exercise jurisdiction only if it has a real and substantial connection with
the subject matter of the litigation. This has the effect of preventing a court from unduly
entering into matters in which the jurisdiction in which it is located has little interest.

The view has been held that jurisdiction in a personal action rests upon physical power
and the ability of the court to enforce any judgment it may render. Jurisdiction therefore,
normally depends upon the presence of the defendant within the territorial limits of the
court or upon the voluntary submission of the defendant to the authority of the court.

There are three ways in which jurisdiction may be assessed against an out-of-state
defendant: 1) presence-based jurisdiction; 2) consent-based jurisdiction; 3) assumed
jurisdiction. Presence-based jurisdiction permits jurisdiction over an extra-state
defendant who is physically present within the territory of the court. Consent-based
jurisdiction permits jurisdiction over an extra-state defendant who consents, whether by
voluntary submission, attornment by appearance and defence, or prior agreement to
submit disputes to the jurisdiction of the domestic court. Assumed jurisdiction is initiated
by service of the court is process out of the jurisdiction. Unlike presence-based
jurisdiction and consent-based jurisdiction, assumed jurisdiction does not provide a
basis for recognition and enforcement.

Subject: Conflict of Laws
Professor: Atty. Robles
Transcrpt
17

Frequently there is no single forum that is clearly the most convenient or appropriate for
the trial of the action but rather several which are equally suitable alternatives. Where
more than one forum is capable of assuming jurisdiction, the most appropriate forum is
determined through the FORUM NON CENVENIENS doctrine which allows a court to
decline to exercise its jurisdiction on the ground that there is another forum more
appropriate to entertain the action.

DOMICILE AND RESIDENCE

In common law systems, domicile has traditionally been regarded as the most
appropriate connecting factor to establish personal law.

Domicile has been defined as a persons permanent home, which requires the act of
residence and the intention to remain there permanently. While a person may have
more than one home, he can only have one domicile. An existing domicile is presumed
to continue until it is proved that a new domicile has been acquired and the burden of
proving a change in domicile lies on those who assert it.

It is well-established that a court must determine a persons domicile according to the
rules for ascertaining domicile accepted by the lex fori.

The conventional common law view is that residence, as an element of domicile, means
very little more than physical presence. But it does mean something more. The court will
ask whether the person is an inhabitant, in contrast to merely a tourist or casual visitor.
The important issue, in other words, is what intention underlies the physical presence.
An immigrant can acquire a domicile of choice immediately upon arrival, if requisite of
evidence exists.

Domicile connoted an exclusive connection no person can have more than one
domicile at one in the same time. However, in countries organized on a federal model, it
is possible for a person simultaneously having two domiciles a federal domicile for the
purposes of federal law and a domicile in one of the provinces or states for the
purposes of provincial or state law.

To acquire a domicile of choice, the new residence must be freely chosen and not
prescribed or dictated by any external necessity, such as the duties of office, the
demands of creditors, relief from illness.

Dicey

domicile, in general, is the place or country which is in fact his permanent home, but is
in some cases the place or country which, whether it be in fact his home or not, is
determined to be his home by a rule of law.

that place or country either (1) in which he in fact resides with the intention of residence
(animus manendi); or (2) in which, having so resided, he continues actually to reside,
Subject: Conflict of Laws
Professor: Atty. Robles
Transcrpt
18

though no longer retaining the intention of residence; (3) with regard to which, having so
resided there, he retains the intention of residence, though he, in fact, no longer resides
there.

STORY

Domicile may be either national or domestic. In deciding the question of national
domicile, the point to be determined will be in which of two or more distinct nationalities
a man has his domicile. In deciding the matter of domestic domicile, the question is in
which subdivision of the nation does the person have his domicile. Thus, whether a
person is domiciled in England or France would be a question of national domicile,
whether in Norfolk or Suffolk county, a question of domestic domicile.

Legal residence, inhabitancy, and domicile are generally used as synonyms, but much
depends on the connection and purpose.

Within divorce statutes, residence has been construed as equivalent to domicile, but it
must be an actual residence.

Two things must concern to establish domicile the fact of residence and the intention
of remaining. These two must exist or must have existed in combination. There must
have been an actual residence

Mere taking up residence is not sufficient, unless there be an intention to abandon a
former domicile. Nor is intention of constituting domicile alone, unless accompanied by
some acts in furtherance of such intention.

-----
Proof of domicil does not depend upon any particular fact, but upon all the facts and
circumstances taken together tend to establish the fact.

Domicil is said to be of three kinds domicil of origin, or by birth, domicil by choice, and
domicil by operation of law. The place of birth is the domicil by birth if at that time it is
the domicil of the parents. If the parents are on a journey, the actual domicil of the
parents will generally be the place of domicil. Children of ambassadors and consuls,
and children born on seas, take the domicil of their parents.

The domicil by birth of a minor continues to be his domicil till changed; it changes with
that of the father.

The domicil of origin always remains in abeyance, as it were, to be resorted to the
moment the domicil of choice is given up. If one leaves a domicil by choice, with the
intention of acquiring a new one, his domicil of origin attaches the moment he leaves
the former, and persists until he acquires the latter. This, however, can only be true of
national, as distinguished from local domicil; when a local domicil of choice is acquired,
it certainly persists until a new one is adopted.
Subject: Conflict of Laws
Professor: Atty. Robles
Transcrpt
19


Domicil by choice is that domicil which a person of capacity of his free will selects to be
such.

Domicil is conferred in many cases by operation of law, either expressly or
consequentially.

There may be a commercial domicil acquired by maintenance of a commercial
establishment in a country, in relation to transactions connected with such
establishments.

Any person, sui juris, may make any bona fide change of domicil at any time. Domicil is
not lost by going to another state to seek a home, but continues until the home is
obtained. To constitute a change of domicil three things are essential: (1) Residence in
another place; (2) an intention to abandon the old domicil; and (3) an intention of
acquiring a new one; or as some writers express it there must be an animus non
revertendi and an animus manendi, or animus et factum. (The factum is the transfer of
bodily presence, and the animus is the intention of permanently or for an indefinite
period)

In the acquisition of a new domicil, more is required than a mere change of residence;
there must be a fixed intention to renounce birthright in the place of original domicil and
to adopt the political and municipal status involved by the permanent residence of
choice elsewhere.

The law of the place of domicil governs as to all acts of the parties, when not controlled
by the lex loci contractus or the lex rei sitae.

The state and the condition of the person according to the law of his domicil will
generally, though not universally, be regarded in other countries as acts done, rights
acquired, or contracts made in the place of his native domicil; but as to acts, rights, and
contracts done, acquired, or made out of his domicil, the LEX LOCI will generally govern
in respect to his capacity and condition.

The disposition of, succession to, or distribution of the personal property of a decedent,
wherever situated, is to be made in accordance with the law if his actual domicil, at the
time of his death. The principle applies equally to cases of voluntary transfer, intestacy,
and of testaments.

Wells are to be governed by the law of the domicil as to her capacity of parties; and as
to their validity and effect in relation to personal property; but by the lex rei sitae as to
the transfer of real property.

The forms and solemnities of the place of domicil must be observed.

Subject: Conflict of Laws
Professor: Atty. Robles
Transcrpt
20

The local law is to determine the character of property. And it is held that a state may
regulate the succession to personal as well as real property within its limits, withour
regard to the lex domicilii.

The interpretation of a will of movables is to be according to the law of his actual domicil
of the testator.

Distribution of the personal property of an intestate is governed exclusively by the law of
his actual domicil at the time of his death.

An assignment of property for the benefit of creditors valid by the law of the domicil is
generally recognized as valid everywhere, in the absence of positive statute to the
contrary, but not to the injury of citizens of the foreign state in which the property is
situated. But a compulsory assignment by force of statute is not of extra territorial
operation.

A residence is different from domicil, although it is a matter of great importance in
determining the place of domicil. The essential destination between residence and
domicil is that the first involves the intent to leave when the purpose for which one has
taken up hise abode ceases. The other has no such intent; the abiding is animo
manendi. One may seek a place for the purpose of pleasure, of business, or of health. If
his intent to remain, it becomes his domicil; if his intent be to leave as soon as his
purpose is accomplished, it is his residence.

Residence indicates permanency of occupation, as distinct from lodging, or boarding, or
temporary occupation, but does not include as much as domicil, which requires an
intention combined with residence.

For the exercise of rights and the performance of civil obligations, the domicile of natural
persons is the place of their habitual residence.

The use of habitual to quantify residence implies a more permanent or enduring
quality than the term would import by itself. Habitual residence is a midpoint between
domicile or residence. It differs from ordinary residence in its quality of continuity for a
substantial perio and from domicile domicile in its lack of the need for permanence.

It is well established that the domicile of a corporation in the country in which it was
incorporated.

A corporations charter and the laws of its domicile govern with respect to the fact and
duration of the existence of the corporation, its internal affairs and management, its
capacity to sue, the authority of its directors to represent it or to bring action, its power
to make particular contracts, the validity of conveyances of corporate property, the
corporations right to issue stock, its right to guarantee dividends upon stock, the validity
of transfers of its stock, and the validity of bonus stock issued to directors.

Subject: Conflict of Laws
Professor: Atty. Robles
Transcrpt
21

Apart from burdens which may be imposed upon them by the laws of a state which a
foreign corporation enters and in which it undertakes to do business, considered
infra!., the rights and liabilities of stockholders and directors are determined by the
charter and governing laws of the state in which the corporation is created.

The law of a companys domicile also governs as to the persons who are entitled to act
as directors of the corporation and the manner of their selection.

*FOREIGN CORPORATION one created by or under the laws of any other state or
government

*a corporation can have no legal existence out of the boundaries of the sovereignty by
which it is created. It exists only in contemplation of law, and by force of the law, and
where that law ceases to operate, and is no longer obligatory, the corporation can have
no existence. It must dwell in the place of its creation, and cannot migrate to another
sovereignty.

it may contract in other states within the scope of its own powers and subject to the
laws of the lex loci contractus or the lex loci solitious, as the case may be, as natural
oersons may contract where they do not reside.

unless expressly forbidden to do so a corporation may acquire rights of contract and
property in the foreign jurisdiction; private corporations will be permitted to transact in
other states the business authorized by the state of their creation, subject to any
limitations imposed by express legislation or to the laws and policy of the state in which
it does business.

every power, however, which a corporation exercises in another state, depends for its
validity upon the laws of the sovereignty in which it is exercised, and a corporation can
make no valid contract without their sanction, express or implied; any other exercise of
power by it rests absolutely upon the doctrine of comity, and is subject to the laws and
regulations, process and remedial jurisdiction of the state of business or temporary
denial.

whatever limitations a state statute may impose upon a foreign corporations liberty of
contracting, whatever its discriminations, they become conditions of the permission to
do business in the state and such conditions were accepted with the permit.

foreign corporations are sometimes by the legislation of a state made domestic
corporations for certain purposes, as for jurisdiction . . . . a state may impose such
terms for the admission of foreign corporations as it may deem best . . . . or may
exclude from, and this power extends to a single one already within its jurisdiction, if the
act does not deprive it of property without due process of law, and the mere right to
extend its business into a state is not property in this sense . . . . the right of a state to
prevent foreign corporations from continuing to do business within its borders is a
correlative of the right to exclude them therefrom, and as this power is plenary, the
Subject: Conflict of Laws
Professor: Atty. Robles
Transcrpt
22

state, so long as no contract is impaired, may exercise it in consideration of acts done in
another jurisdiction.

business cannot be carried on in a state by a foreign corporation which has not
complied with all the conditions imposes by the state as a prerequisite to doing business
within its limits; the state may in their discretion impose conditions upon foreign
corporations as essential to enable them to do business.

in all cases involving the right of foreign corporations to hold lands the LEX REI SITAE
governs.

in suits against foreign corporations the question of jurisdiction is of first importance,
and it is the general rule that a corporation, like a natural person, cannot be sued in
personam in a state within whose limits it has never been found. This conclusion
springs naturally from the principle that a corporation being the creation of local law, can
have no legal existence beyond the limits of the sovereignty where created; but this rule
is subject to exceptions growing out if the theory that, under certain circumstances, such
corporations will be held in law to have acquired a domicil within a state at least so far
as to subject them to suit.

DEFINITIONS:

Lex Domicilii: law of the country where a person is domiciled. The determination of a
persons rights is governed by establishing where, in law, that person is domiciled. It
governs a persons 1) capacity to act, 2) status 3) capacity to enter into contracts 4)
family relations 5)

Lex Fori: means law of the forum. The law of the jurisdiction where the case is pending.
It also pertains to the place where relief is sought, and controls procedural matters.
Cases which are penal in nature and involving tax cases are governed by the law of the
forum.

Lex Loci: means the law of the place or local law. It pertains to the law of the place
where the right was acquired or liability was incurred, which constitutes the cause of
action.

Lex Reit sitae (lex situs): Law of the place where the property is located. It includes
matters governing real property, its title, disposition, including a persons capacity to do
so.