Académique Documents
Professionnel Documents
Culture Documents
Chapter 1
In General
Conflict of Laws
That part of the 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 or foreign laws
Conflict of laws case
Any case which involves facts occurring in more than one
state or nation, so that in deciding the case, it is necessary
to make a choice between the laws of different states or
countries
Note: Conflict of laws is NOT part of international law.
Although it is sometimes thought of as part of international
law because of the presence of a foreign element in a given
problem, it is not international law in character but is part of
the municipal law of each state. By municipal law in Conflict
of Laws is meant the internal or local law of each state.
Conflict of laws vs. public international law
Public
Conflict of laws
International
Law
As to persons
Governs
Governs private
involved
sovereign states
individuals or
and entities that
corporations
are internationally
recognized or
possessed of
international
personality
As to nature
International in
Municipal in
character
character
As to
Applies only to
Deals with
transactions
transactions in
transactions
involved
which only
strictly private in
sovereign states
nature in which
or entities with
the country as
international
such has generally
personality are
no interest
concerned and
which generally
affect public
interest
As to remedies
The concerned
Recourse is had to
applied
states may first
judicial or
resort to peaceful
administrative
remedies. If these tribunals in
remedies fail, the
accordance with
states concerned
the rules of
may resort to
procedure of the
forcible remedies
country where
they sit
Sources of Conflict of Laws
1.
Direct sources
Treaties
International conventions
Constitutions
Codifications and statutes
Judicial decisions
International customs
2.
Indirect sources
1.
2.
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Conflict of Laws
Jurisdiction in personam
Binds only the parties and
their successors in interest
3.
Service by publication
(1) Action in rem
(2) Action quasi in rem
(3) Action involves the personal status of
plaintiff
Extraterritorial service of summons
(1) When the defendant does not reside and
is not found in the Philippines, and the
action affects the personal status of the
plaintiff
(2) When the defendant does not reside and
is not found in the Philippines, and the
action relates to or the subject of which is,
property within the Philippines (real or
personal), in which the defendant has a
claim, a lien or interest, actual or
contingent
(3) When the defendant is a non-resident but
the subject of the action is property
located in the Philippines in which the
relief demanded consists in excluding the
defendant from any interest therein
(4) When the property of a non-resident
defendant has been attached in the
Philippines
While a writ of attachment may
be issued by the court, said
writ cannot be implemented
until the court has acquired
jurisdiction over the nonresident defendant
4.
To curb the evils of forum shopping the nonresident plaintiff might have filed the case in the
forum merely to secure procedural advantages or
to annoy or harass the defendant
5.
6.
7.
8.
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Conflict of Laws
2.
4.
5.
6.
7.
8.
2.
Page 3 of 23
Conflict of Laws
1.
2.
2.
Passive capacity
The fitness to be the subject of legal
relations
Capacity to act
Active capacity
The power to do acts with legal effects
Characteristics of status
1. It is conferred principally by the State, not by the
individual
2. It is a matter of public interest or social interest
3. Being a concept of social order, it cannot easily be
terminated at the mere will or desire of the parties
concerned
4. It is generally supposed to have a universal
character
Chapter 5
Characterization of conflict rules
Characterization
Otherwise known as classification or qualification is the
process of assigning a certain set of facts or factual
situation to its proper or correct legal category. By
characterizing the legal problem, the court of the parties
involved reach the proper solution whether to apply the
local law or the proper foreign law
Most writers hold that on the grounds of practical
necessity and convenience, it is the forum or the
lex fori that should determine the problems
characterization unless the result would be a clear
injustice
Note: Modern trend is to consider prescriptive periods
or Statute of Frauds that the parties had in mind at the
time the transaction took place
Chapter 6
Persona law Theories in determining ones personal
law
Personal law.
That which attaches to him wherever he may go. The law
that generally governs his status, capacity, condition, family
relations, and the consequences of his actuations. It may
be:
1. National law
2. Law of his domicile
3. Law of the situs
Status vs. capacity
Status
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
Capacity
Only part of ones status and
may be defined as the sum
total of his rights and
obligations
Juridical capacity
Chapter 7
The Nationality Theory
Different kinds of citizenship in the Philippines
1. Natural born citizens
Those who are citizens from birth without
having to perform any act to acquire or
perfect their Philippine citizenship
Native-born Filipinos
Those born in the Philippines. Natural-born
citizens may not be native-born if they were
born abroad
1.
Citizenship
A citizen is one who owes
allegiance to and is entitled
to the protection of the State
2.
Citizens by naturalization
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Conflict of Laws
Jus sanguinis
It is citizenship by blood
This is the rule that we
follow in the Philippines
Page 5 of 23
Conflict of Laws
Qualifications
Disqualifications
Naturalization
Judicial naturalization under Com. Act. 475,
as amended
1. The petitioner must not e less than 21 years
of age on the date of the hearing of the
petition
2. He must have, as a rule, resided in the
Philippines for a continuous period of not less
than 10 years
3. He must be of good moral character, and
believe in the principles underlying the
Philippine Constitution, and must have
conducted himself in a proper and
irreproachable manner during the entire
period of his residence in the Philippines in his
relation with the constituted government as
well as with the community in which he is
living
4. He must own real estate in the Philippines
worth not less than 5,000, Philippine
currency, or must have some lucrative trade,
profession, or occupation
5. He must be able to speak and write English or
Spanish and any one of the principal
languages and
6. He must have enrolled his minor children of
school in any of the public or private schools
recognized by the Bureau of Private Schools
where Philippine history, government, and
civics are taught or prescribed as part of the
school curriculum during the entire period of
the residence required of him, prior to the
hearing of his petition for naturalization as
citizen
1.
2.
3.
4.
5.
6.
7.
8.
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Conflict of Laws
Page 7 of 23
Conflict of Laws
Loss of citizenship
Under Com. Act 63, as amended, a Filipino citizen may lose
his citizenship in any of the following ways:
1. By naturalization in a foreign country
2. By express renunciation of citizenship
3. By subscribing an oath of allegiance to support the
constitution or laws of a foreign country upon
attaining twenty-one years of age or more
4. By accepting commission in the military, naval, or
air service of a foreign country
5. By cancellation of the certificate of naturalization
6. By having been declared by competent authority, a
deserter of the Philippine armed forces in time of
war, unless subsequently a plenary pardon or
amnesty has been granted; and
7. In case of a woman, upon her marriage to a
foreigner, if, by virtue of the laws in force in her
husbands country, she acquires his nationality
Under the 1987 Constitution, however, the
woman retains her Philippine citizenship
unless by her act or omission she is
deemed under the law to have renounced
her Philippine citizenship
Philippine citizenship, how reacquired
Under C.A. 63, as amended, Philippine citizenship may be
reacquired as follows:
1. By naturalization, provided the applicant possesses
none of the disqualifications
2. By repatriation of deserters of the Army, Navy, or
Air Corps, Provided, that a woman who lost her
citizenship by reason of her marriage to an alien
may be repatriated in accordance with the
provisions of this Act after the termination of the
marital status
3. By direct act of Congress
RA 9225 Citizenship Retention and Reacquisition
Act of 2003
Under this law, natural born Filipino citizens who had been
naturalized in foreign countries are deemed to have
reacquired Philippine citizenship by taking an oath of
allegiance to the Philippine Constitution and laws. Those
who become naturalized in foreign countries after the
effectivity of the Act retain their Philippine citizenship upon
taking the same oath
Chapter 8
Domiciliary Theory
Domiciliary theory
It is the theory whereby the status, condition, family rights
and obligations, and capacity of a person are governed by
the law of his domicile or the lex domicilii
Domicile
It is the place where a person has his true, fixed,
permanent home, and principal establishment, and to
which, whenever he is absent, he has the intention of
returning.
Domicile v. residence
Domicile
Residence
Denotes a fixed, permanent
Used to indicate a place of
residence to which, when
abode, whether permanent
absent, one has the
or temporary
intention of returning
Residence is not domicile, but domicile is residence coupled
with intention to remain for an unlimited time
Domicile v. citizenship
Domicile
Citizenship
Speaks of ones permanent
Indicates ties of allegiance
place of abode
and loyalty
A person may be a citizen or national of one sate and a
domiciliary of another
Note: The forum applies its own concept of domicile in
determining the domicile of a litigant before its courts (law
of the forum/lex fori, NOT national law, is the law that
determines ones domicile)
Different kinds of domicile
1.
2.
3.
6.
Conflict of Laws
If a foundling
Public officials or
employees abroad
(diplomats, etc)
1.
2.
3.
4.
1.
2.
3.
Chapter 9
The situs or eclectic theory
Situs or eclectic theory
The capacity, status, and family relations of a person are
governed not necessarily by the law of his nationality or the
law of his domicile but by the law of the place (situs) where
an important element of the problem occurs or is situated
Two kinds of participation of an individual under the
situs or eclectic theory
1.
2.
Renvoi
A French word which means refer back or
return
In Anglo-American countries, the term used is
remission, which means to refer a matter for
consideration or judgment
When does the problem of renvoi arise?
The problem of renvoi arises when there is doubt as to
whether the reference by the lex fori (the law of the country
where the problem arises) to the foreign law involves:
1. A reference to the internal law of the foreign law or
2. A reference to the entirety of the foreign law
including its conflicts rules
In such case, if the first state follows the
nationality theory, and the second state
follows the domiciliary theory, the problem
of renvoi will most probably arise
Four solutions the court can adopt when confronted
with a renvoi problem
1. Reject the renvoi
This means that the court does not want
the problem to be sent back to us.
As in the case of the testate or intestate
succession of a foreigner but domiciled in
our country, we would simply apply his
national law or the internal law of his
country
2. Accept the renvoi
Accept the referral or transmission of the
case back to us, so that instead of
applying the foreign internal law,
Philippine law is applied
Single renvoi or single transmission
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Conflict of Laws
3.
4.
Double renvoi
This occurs when the local court, in adopting the foreign
court theory, discovers that the foreign court accepts the
renvoi. But since the foreign law remits the case to
Philippine law, being the law of the deceaseds domicile, the
foreign court may discover that Philippine law does not
accept the remission (as it applies the national law of the
deceased) so the foreign court, sitting as a Philippine court,
would still apply its own internal law. This is then what our
court will apply.
Theory of transmission v. renvoi
Theory of transmission
Renvoi
Transmission is the process
Renvoi means to refer a
of applying the law of a
matter for consideration or
foreign state thru the law of
judgment
a second foreign state
Transmission involves three
Renvoi involves two laws
laws
2.
1.
Absence, defined
A special legal status pertaining to a person who has
disappeared from his domicile, his whereabouts being
unknown, without leaving an agent to administer his
property or even if he had left an agent, the power
conferred by the absentee on the agent has expired
One status of being absent is determined in
accordance with his personal law
Our own courts also have jurisdiction to declare an
alien domiciliary in the Philippines as absent
Judicial declaration of absence under Philippine law
After the lapse of two years without any news about the
absentee or since the receipt of the last news, and five
years if the absentee has left an administrator of his
property, his absence may be declared
Instances when an absentee may be presumed dead
and for what purposes
1.
2.
3.
Chapter 11
Conflict rules on status and capacity
When human personality begins under our law
Conflict of Laws
1.
2.
1.
2.
Essential requisites
(1) Legal capacity of the contracting parties
who must be male and female
(2) Consent freely given in the presence of a
solemnizing officer
Formal requisites
(1) Authority of the solemnizing officer
(2) A valid marriage license
(3) A marriage ceremony takes place with the
appearance of the contracting parties
before the solemnizing officer and their
personal declaration that they take each
other as husband and wife in the presence
of not less than two witnesses of legal age
3.
4.
Mixed Marriages
Marriage between a
Filipino and foreigner
Conflict of Laws
ABROAD
Marriage between a
Filipino and a foreigner in
the PHILIPPINES
1.
2.
1.
2.
3.
EXCEPTIONS
1. If the national law of the husband violates public
policy of the forum
2. The national law of the wife happens to be the law
of the forum
Conflicts rules on the property relations of husband
and wife
GR: Property relations of the spouses are governed by
Philippine law, regardless of the place of the celebration of
marriage and their residence (nationality theory)
If one spouse is a Filipino (wife or husband) and
the other is an alien, Philippine law would still
govern
EX:
1.
2.
Conflict of Laws
prescription
The same property regime
as in a valid marriage is
established between the
spouses
The children are legitimate if
conceived before the decree
of annulment
Divorce
Absolute divorce, dissolves
the marriage and the parties
can marry again
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Conflict of Laws
2.
Page 14 of 23
Conflict of Laws
2.
Conflict of Laws
(notarial or
holographic) etc
Conflicts rules in the Philippines on extrinsic validity
of wills
1. If a Filipino makes a will abroad - he may comply
with the formalities of Philippine law (lex nationalii)
or the lex loci celebrationis (the law of the place
where he was at the time of the execution of the
will) Art. 815, NCC
2. If an alien makes a will abroad - he may comply
with the formalities of his lex nationalii (law of the
country of which he is a citizen, the lex domicilii
(law of his domicile0, or the lex loci celebrationis
3. If an alien makes a will in the Philippines he may
comply with the formalities of his own country (lex
nationalii) or of Philippine law (lex loci
celebrationis)
4. Holographic wills must be entirely written, dated,
and signed by the hand of the testator. It is subject
to no other form and may be made in or out of the
Philippines and need not be witnessed (Art. 810,
NCC)
Conflicts rules on joint wills
1. Filipinos cannot make joint wills whether he or
abroad
2. Joint wills made by aliens shall be considered valid
in the Philippines if valid according to their lex
nationalii or lex domicilii or if valid under lex loci
celebrationis
3. Joint wills made by aliens in the Philippines are
void even if valid under their lex nationalii or lex
domicilii in order that our public policy on joint wills
may not be militated against
4. A joint will executed by an alien and a Filipino
citizen abroad will be valid even as to the alien (if
his national law or law of his domicile or lex loci
celebrationis allows it) but void as to the Filipino
Conflicts rules on intrinsic validity of wills
1. lex nationalii in countries that follow the
nationality theory
2. lex domicilii in countries that follow the
domiciliary theory
What governs the intrinsic validity of wills in the
Philippines
The NCC applies the lex nationalii of the decedent
Note: in case of conflict between the nationality
theory and the domiciliary theory, we can treat the
case as one of renvoi so that we can still apply
Philippine law even if the deceased was a citizen of
another country
Conflicts rules if a person dies intestate
1. In civil law countries the national law of the
decased applies
2. In common law countries the lex domicilii of the
deceased at the time of death applies with respect
to personalty, while the lex situs applies with
respect to real property
Conflicts rules on revocation of wills
1. Under Art. 829 of the NCC, a revocation done
outside the Philippines by a person who does not
have his domicile here is valid if done according to:
2.
3.
Probate, defined
Probate is the process of proving before a competent court
the due execution of a will, that the testator was possessed
of testamentary capacity, and the approval by said court of
the will
Conflict rules on probate of wills
1. The allowance of disallowance of a will is
essentially procedural, so that the law of the forum
applies to all procedural matters
2. Art. 838, 1st par: now will shall pass either real
or personal property unless it is proved and
allowed in accordance with the Rules of Court
3. There is no period of prescription for the probate of
a will
4. Wills proved and allowed in a foreign country
according to the laws of each country may be
allowed, filed, and recorded by the proper court in
the Philippines
5. Although a foreign will had already been probated
in a foreign country, it still has to be reprobated in
the Philippines in accordance with our procedural
law it is sufficient to ask for the enforcement of
the foreign judgment of the probate abroad
6. The evidence necessary for the probate or
allowance of wills which have been probated
outside the Philippines are:
(1) The due execution of the will in
accordance with the foreign law because
we cannot take judicial notice of foreign
laws
(2) The testator had his domicile in the
foreign country where the will was
probated
(3) The will had been admitted to probate in
said country
(4) The foreign tribunal is a probate court
(5) The laws of the foreign country on
procedure and allowance of wills were
followed
Administration of estate of deceased persons
Administration is the process of determining and realizing
the assets of a deceased person, the payment of the debts
of the estate, and the actual distribution of the residue to
the heirs
Conflicts rules on administration of estate of
deceased by persons
1. Administration is procedural in nature. It is the lex
fori that governs not the law that determines how
the estate of the deceased is to be distributed
Page 16 of 23
Conflict of Laws
2.
Appointed by
testator in
his will
3.
4.
5.
Administrator
with a will
annexed
Appointed by
the court if
there is a will
but no executed
is designated
therein
Appointed by
the court if
there is no will
6.
Administrator
Ancillary
administration
Administration in other
countries where the
deceased also left
properties
Chapter 15
PROPERTY
Conflict rules on real property and personal property
GR: lex situs/ lex re sitae law of the place where the
property is located
Old rule on law on personal property/movables Mobilia sequuntur personam
Personal effects or belongings of owner carried with him
wherever he went.
Lesley Claudio (A 2012)
Conflict of Laws
CREDITS OR DEBTS
Involuntary transfer of
The situs of the place
assignment of a debt
where the debtor may be
(garnishment)
served (usually his
domicile)
The proper law of the
contract (the proper law of
the original transaction out
of which the chose in
action or credit arose)
Voluntary assignment
or transfer of credit
Other theories:
1. The law of the
place where the
assignment is
executed
2. The law of the
place where
performance or
payment is
normally
expected
3. The national law
of the parties
Domicile of creditor
is carried on
Goodwill
-The patronage of any
established trade or
business
Patents, copyrights, trademarks, trade names,
and service marks
Patents, copyrights,
GR: in the absence of a
trade marks, trade
treaty, protected only by
names
the state that granted or
recognized them
Art. 520, NCC: a trade
mark or a trade name duly
registered in the proper
government bureau or
office is owned by and
pertains to the person,
corporation, or firm
registering the same,
subject to the provisions
of special laws
Intellectual property
Code: Any foreign
corporation being a
national or domiciliary o a
country which is a party to
a convention, treaty, or
agreement related to
intellectual property rights
to which the Philippines is
also a party or which
extends reciprocal rights
to our nationals by law,
shall be entitled to the
benefits to the extent
necessary to give effect to
any provision of such
convention.
- Foreign corporation even
if not engaged in business
in the Philippines may
nevertheless bring a civil
or administrative action,
for opposition,
cancellation, infringement,
or unfair competition.
Chapter 16
CONTRACTS
Contract, defined
Art. 1305, NCC: Meeting of minds between two persons
whereby one binds himself, with respect to the other, to
give something or to render some service.
The specific subject of contract in Conflict of Laws
is limited to purely civil or commercial transactions.
Conflicts rules in determining extrinsic validity of
contracts
GR: the extrinsic validity of contracts is governed by the lex
loci celebrationis/ lex loci contractus
Page 18 of 23
Conflict of Laws
3.
4.
5.
6.
7.
8.
Extrinsic
validity
Barter, sale,
donation
Lease of
property:
creates real
rights
Lease of
property:
does not
create real
rights
Pledge,
chattel
mortgage,
real estate
mortgage,
antichresis
Contract of
loan: mutuum
Lex situs
Capacity
of
parties
Lex situs
Lex situs
Lex situs
Lex situs
Lex loci
celebrationis
Personal
law of
the
parties
Lex
voluntatis
or lex loci
intentionis
Lex situs
Lex situs
Lex situs
Lex loci
celebrationis
Contract of
loan:
commodatum
Lease of
service,
agency,
guaranty,
suretyship
Lex situs
Personal
law of
the
parties
Lex stius
Lex loci
voluntatis
or lex loci
intentionis
Lex situs
Personal
law of
parties
Lex loci
volntatis
or lex loci
intentionis
Lex loci
celebrationis
Intrinsic
validity
Lex situs
Note: Agency
to alienate or
encumber real
property is
Page 19 of 23
Conflict of Laws
governed by lex
situs
Lex loci
celebrationis
Personal
Lex loci
law of
voluntatis
parties
Liability for loss, destruction,
deterioration of goods in transit: law
of destination of goods (Art. 1753,
NCC)
Contract of
transportation
or carriage
(render
services)
2.
3.
3.
Page 20 of 23
Conflict of Laws
Chapter 18
CRIMES
Tort v. Crime
Tort
Crime
Both are wrongs
Violates private rights
Committed against state
Instituted by injured person
Prosecuted in the name of
against wrongdoer in civil
the State against the
case, the purpose of which
offender in criminal actions
is indemnification for
for the purpose which are
damages suffered
protection and vindication of
interests of the public as a
whole, punishment of the
offender, the reformation of
offender, or to deter others
from committing the same
act
Transitory in character
Local in character and can
tortfeasor can be made
be prosecuted only in the
liable for his wrongful act in
place or states where the
any jurisdiction where he
crimes are committed
may be found
Note: The determination of whether a wrongful act is a tort
or crime depends on the characterization of the act in the
state where said act is committed
Different theories that determine whether a state or a
legal system has jurisdiction to take cognizance of
criminal cases
Under this theory, the state
where the crime was
Territorial theory
committed has jurisdiction to
try the case, and its penal
code and the penalties
described therein will apply
Subjective territorial
principle
The state where the crime
was begun may prosecute
the same, even if it was
completed in another state
Objective territorial
principle
Lesley Claudio (A 2012)
Nationality or personal
theory
Protective theory
Cosmopolitan or
universality theory
Passive personality or
passive nationality theory
Page 21 of 23
Conflict of Laws
2.
Chapter 19
BUSINESS ASSOCIATIONS
Corporation, defined
Sec. 2 of Corporation Code: An artificial being created by
operation of law, having the right of succession and the
powers, attributes, and properties expressly authorized by
law or incident to its existence
Foreign corporation, defined
Sec. 123 of Corporation Code: One formed, organized, or
existing under any laws other than those of the Philippines
and whose laws allow Filipino citizens and corporations to do
business in its own country or state
Page 22 of 23
Conflict of Laws
Chapter 20
RECOGNITION AND ENFORCEMENT OF FOREIGN
JUDGMENTS
Enforcement v. recognition
Enforcement of foreign
judgment
Means that the plaintiff or
petitioner wants the court to
positively carry out and
make effective the foreign
judgment
Implies an act of
sovereignty
Requires separate action or
proceeding brought precisely
to make foreign judgment
effective
Recognition of foreign
judgment
Means that eh defendant or
respondent is presenting the
foreign judgment on the
basis of res judicata
Page 23 of 23