ASSIGNMENT # 2 IN CONFLICTS OF LAWS

1. In the Philippines' structure of government, which branch/es or agency/ies

of government are tasked/authorized to resolve/settle conflict of laws cases?

Judiciary-

2. What is jurisdiction? What is the significance of the jural concept

of jurisdiction in conflict of laws ("conflicts" for short) cases.

Jurisdiction (from the Latin ius, iuris meaning "law" and dicere meaning "to
speak") is the practical authority granted to a legal body to administer justice
within a defined area of responsibility

Colloquially it is used to refer to the geographical area to which such authority

applies, e.g. the court has jurisdiction over all of Colorado. The legal term refers
only to the granted authority, not to a geographical area.

Jurisdiction draws its substance from public international law, conflict of

laws, constitutional law, and the powers of the executive and legislative
branches of government to allocate resources to best serve the needs of its
native society.

WAYS OF DISPOSING OF CONFLICTS CASES

Dismiss the case, either because of lack of jurisdiction or refusal to assume

jurisdiction over the case
Assume jurisdiction over the case and apply the internal law of the forum
Assume jurisdiction over the case and take into account or apply the law of some
other State or states

JUDICIAL JURISDICTION

Jurisdiction the right of a state (due to sovereignty) to exercise authority over

persons and things within its boundaries, subject to certain exceptions (ie over
traveling sovereigns, ambassadors and diplomatic representatives, etc)

Judicial jurisdiction legal authority of a state to exercise authority, through its

courts or agencies, to hear and adjudicate cases; power of a court or agency to
hear and determine an issue upon which its decision is sought

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 Legislative jurisdiction the power of a state to regulate or control, through
rules of law, interests or persons in a thing, event or situation

TYPES OF JURISDICTION

1. Jurisdiction over the Subject Matter the power to hear and determine cases of
the general class to which the proceedings in question belong and is conferred by the
sovereign authority which organizes the court and defines its powers Jurisdiction
conferred to by law, not by consent of the parties or voluntary submission It is the
allegations in the petition or complaint that will invest the court with the power to hear
and determine the case Allegations in the complaint shows a prima facie lack of
jurisdiction dismiss If on the complaints face, there is a presence of jurisdiction, ,
proceed with trial. Should evidence show lack of jurisdiction, dismiss the case

2. Personal Jurisdiction competence of a court to render a decision that will bind the
parties to the suit; Bases: Presence, Domicile, Residence, Nationality or Citizenship,
Consent, Appearance in an Action, Doing Business in the State, An Act done in the State,
Causing an Effect in the State by an Act done Elsewhere, Ownership, Use or Possession
of a Thing in the State, Other Relationships to the State which make the Exercise of
Judicial Jurisdiction Reasonable

3. Jurisdiction over the Plaintif acquired from the moment he invokes the aid of
the court and voluntarily submits himself by institution of the suit through proper
pleadings

4. Jurisdiction over the Defendant

voluntary appearance
enters his appearance as defendant UNLESS he makes it clear that the
purpose of his appearance is to question the jurisdiction of the court
over his person
personal service, and if he refuses, tendering, of summons
substituted service of summons by
leaving copies of the summons in dwelling or residence with someone
of suitable age or discretion then residing
leaving copies in defendants office or regular place of business with
some competent person in charge summons by publication, 3
instances
action in rem
quasi in rem
involves the personal status of the plaintiff NB: Jurisdiction continues
throughout all subsequent proceedings which may arise out of the
original cause of action

5. Jurisdiction over the Res (actions in rem, quasi in rem, in personam) jurisdiction
over the particular subject matter in controversy, regardless of the persons who may be
interested therein.

Action in rem purpose of the suit is to affect the interests of all persons in a thing,
the state may render through its courts a valid judgment, as long as it has
jurisdiction over the thing even though it may not have personal jurisdiction over
the persons whose interests are affected

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 Proceedings quasi in rem purpose is neither to impose a personal liability or
obligation upon anyone, not to affect the interests of all persons in a thing but to
affect the interests of particular persons in a thing

Jurisdiction and the Due Process Clauses

Proceeding in rem service of summons by publication is sufficient because the

case is enforced against the rest of the world
Proceeding in personam personal service of summons or voluntary appearance of
the defendant, by himself or counsel, is required
Proceeding quasi in rem summons by publication is sufficient

NB: a state does not have jurisdiction in the absence of some reasonable basis for
exercising it, whether the proceedings are in rem, quasi in rem, or in personam. To be
reasonable, the jurisdiction must be based on some minimum contacts that will not
offend traditional notions of fair play and substantial justice

3. Distinguish between purely internal rules and conflict of laws rules? Give
examples of each.

Purely Internal Rules

Conflict of laws rules is a set of rules of procedural law which determine the legal
system and the law of jurisdiction applying to a given legal dispute. In civil law, lawyers
and legal scholars refer to conflict of laws as private international law. They typically
apply when a legal dispute has a foreign element.

4. What is meant by the term choice of law?

Choice of law is a procedural stage in the litigation of a case involving the conflict of
laws when it is necessary to reconcile the differences between the laws of different legal
jurisdictions, such as sovereign states, federated states (as in the US), or provinces.

5. What is meant by forum non conveniens? Give examples when this principle
may become applicable.

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 Under the rule of forum non conveniens, a Philippine court or agency may assume
jurisdiction over the case if it chooses to do so provided: (1) that the Philippine court is
one to which the parties may conveniently resort to; (2) that the Philippine court is in a
position to make an intelligent decision as to the law and the facts; and (3) that the
Philippine court has or is likely to have power to enforce its decision

6. Distinguish between lex fori and lex causae.

Lex fori (Latin for the laws of a forum) is a legal term used in the conflict of laws used to
refer to the laws of the jurisdiction in which a legal action is brought. When a court
decides that it should, by reason of the principles of conflict of law, resolve a given legal
dispute by reference to the laws of another jurisdiction, the lex causae, the lex fori still
govern procedural matters.

In the conflict of laws, 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 interjurisdictional case. The term refers to the
usage of particular local laws as the basis or "cause" for the ruling, which would itself
become part of referenced legal canon.

7. The book of Justice Sempio-Diy (2004 Ed., Reprinted 2007) gives three
instances when the court is bound to apply the lex fori (i.e., law of the forum,
or domestic law, or internal law) in a conflicts case.

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8. What Philippine rule on evidence justifies why foreign law, not properly
pleaded and proved, cannot be used for resolving conflicts cases being tried in
the Philippines?

Doctrine of Processual Presumption The foreign law, whenever applicable, should be proved by the proponent
thereof, otherwise, such law shall be presumed to be exactly the same as the law of the forum.

It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws. Like any other
facts, they must be alleged and proved.

In general, in the absence of statutory requirement to the contrary, the courts of the forum will not take
judicial of the law prevailing in another country. Foreign laws must be alleged and proved. In the absence of proof,
the foreign law will be presumed to be the same as the laws of the jurisdiction hearing the case under the doctrine of
processual presumption.

9. What is meant by connecting factor?

Connecting factors are links by which event, thing, transaction, person and
country; such factors link person, events, etc. to country; these elements linking dispute
to particular countries are connecting factors (i.e. nationality, place of occurrence)

Connecting factors are connect legal categories to applicable laws (i.e. of legal
categories are contract, tort, succession)

Connection factors are some outstanding facts which establish natural connection
by which factual situation before court and particular system of law

Examples of connecting factors:

Personal (domicile, habitual residence, and very rarely nationality); place where
transaction occurs (place marriage celebrated loci celebrationis or where contract
concluded loci contractus); place of performance of contract; place where property
situated (situs); place where court is sitting (forum); intention of parties
For choice of law: connecting factors enable courts to identify applicable law (i.e.
choice of law rule may say title to immovable property governed by law of country
where land situated)

10. The following are examples of connecting factor. Explain each one briefly.

a) lex loci contractus

b) lex loci solutionis
c) lex loci celebrationis
d) lex loci delicti
e) lex domicilii
f) lex patriae

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 g) lex situs
h) lex fori

Definition of Terms

a.) 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

b.) 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

c.)Lex Locii Celebrationis- the law of the place where the act was done; In
conflicts, the law where the place where the act was done is applied in choice of
law questions
The lex loci celebrationis principle is expressed in the first paragraph of
Article 26 of the Family Code, which states that: All marriages solemnized outside
the Philippines, in accordance with the laws in force in the country where they
were solemnized, and valid there as such, shall be valid in this country, except
those prohibited under Articles 35(1) (4) (5) 36, 37 and 38.

d.) The lex loci delicti commissi is the Latin term for "law of the place where
the delict [tort] was committed" in the conflict of laws. Conflict of laws is the
branch of law regulating all lawsuits involving a "foreign" law element where a
difference in result will occur depending on which laws are applied.

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 e.) Lex Domicilii law of the domicile; in conflicts, the law of ones domicile
applied in the choice of law questions.

Lex Domicili - Latin for law of the domicile in the Conflicts of Law; In
conflicts, the law of ones domicile is applied in choice of law questions.

f.) Lex Patriae - National Law; In conflicts, the national law of one person is applied
in choice of law questions.

g.) 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

h.) Lex Fori law of the forum; that is, the positive law of the state, country or
jurisdiction of whose judicial system of the court where the suit is brought or
remedy is sought is an integral part. Substantive rights are determined by the law
where the action arose (lex loci) while the procedural rights are governed by the
law of the place of the forum (lex fori)

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