CONFLICT OF LAWS

BY: Philippine Law Reviewers

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

CONFLICT OF LAW

LAW OF NATIONS

Nature

Municipal in
character

Persons
involved

Dealt with by private

individuals; governs
individuals in their
private transactions Sovereign states and other entities possessing
which involve a
international personality, e.g., UN; governs states in their
foreign element
relationships amongst themselves

Transactions
involved

Private transactions
between private
Generally affected by public interest; those in general are
individuals
of interest only to sovereign states

International in character

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,
Remedies and Resort to municipal pacific blockades, collective measures under the UN
Sanctions
tribunals
Charter, and war.

SOURCES:
Direct:
1. Constitutions
2. Codifications
1.
2.
3.
4.

Special Laws
Treaties and Conventions
Judicial Decisions
International Customs

Indirect:
1. Natural moral law
1. Work of writers
TERMS:

Lex Domicilii law of the domicile; in conflicts, the law of ones 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
1. Assume jurisdiction and apply either the law of the forum or of another state
i.

i.

A specific law of the forum decrees that internal law should apply

1. 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:
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

1. 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
1. 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

2. 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 itsconvenience & 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
Factual Situation

Point of Contact

Beginning of personality of National law of the child (Article 15,

natural person
CC)

Ways & effects of

emancipation

Same

Age of majority

Same

Use of names and

surnames

Same

Use of titles of nobility

Same

Absence

Same

Presumptive death &

survivorship

Lex fori (Article 43, 390, 391, CC;

Rule 131 5 [jj], Rules of Court)

Rules on Marriage as a Contract

FACTUAL
SITUATION

Celebrate
d Abroad

Celebrate
d in RP

POINT OF CONTACT

Between
Filipinos

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

Between
Foreigners

Lex loci celebrationisEXCEPT if the

marriage is:
1. Highly immoral (like bigamous/
polygamous marriages)
2. Universally considered
incestuous (between brothersister, and ascendantsdescendants)

Mixed

Apply 1 (b) to uphold validity of

marriage

Between
Foreigners

National law (Article 21, FC)

PROVIDED the marriage is not highly
immoral or universally considered
incestuous)

Mixed

National law of Filipino (otherwise

public policy may be militated against)

Marriage by
proxy (NOTE: a
marriage by
proxy is
considered
celebrated
where the proxy Lex loci celebrationis (with prejudice to
appears
the foregoing rules)
Rules on Marriage as a Status
FACTUAL SITUATION
1

Personal rights &

obligations between
husband & wife

POINT OF CONTACT
National of
husband(Note:Effect of
subsequent change of
nationality:
1. If both will have a
new nationality the
new one
2. If only one will

change the last

common nationality
3. If no common
nationality nationality
of husband at the time
of wedding)

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
theDOCTRINE OF
IMMUTABILITY IN THE
Property relations bet MATRIMONIAL PROPERTY
husband & wife
REGIME)

Rules on Property
FACTUAL SITUATION

Lex rei sitae (Article

16, CC)

Real property
Exceptions

POINT OF CONTACT

National law of
decedent (Article 16
Successional rights 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)

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)

Things
in transitu(these
things have a
changing status
because they
move)
3

Loss, destruction,
deterioration

Law of the destination

(