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Civil Law
SUMMER REVIEWER
CONFLICT OF LAWS
Transac- Private Generally affected
tions transactions by public interest;
CHAPTER 1: GENERAL PROVISIONS involved between those in general
private are of interest only
PRIVATE INTERNATIONAL LAW individuals to sovereign
States
• That part of the law of each State or nation which Remedies Resort to May be peaceful
determines whether, in dealing with a legal and municipal or forcible
situation, the law or some other State or nation Sanctions tribunals Peaceful: includes
will be recognized, given effect, or applied (16 diplomatic
Am Jur, 2d, Conflict of Laws, §1). negotiation, tender
& exercise of good
• That part of municipal law of a State which offices, mediation,
directs its courts and administrative agencies, inquiry &
when confronted with a legal problem involving a conciliation,
foreign element, whether or not they should apply arbitration, judicial
a foreign law/s (Paras). settlement by ICJ,
reference to
• NOTE: A factual situation that cuts across regional agencies
territorial lines and is affected by diverse laws of Forcible: includes
two or more States is said to contain a foreign severance of
element. diplomatic
relations,
FUNCTIONS OF CONFLICT OF LAW RULES retorsions,
reprisals,
1. To proscribe the conditions under which a court embargo, boycott,
or agency is competent to entertain a suit or non-intercourse,
proceeding involving facts containing a foreign pacific blockades,
element; collective
2. To determine the extent, validity and measures under
enforceability of foreign judgment the UN Charter,
3. To determine for each class of cases the and war.
particular system if law by reference to which the Sources Generally Custom, Treaty
rights of the parties must be ascertained derived from and General
the internal Principles of law,
DISTINGUISHED FROM PUBLIC INTERNATIONAL law of the recognized by
LAW state; except civilized nations
any conflict of and juridical
BASIS CONFLICT OF LAW OF NATIONS law question decisions and
LAW governed by teachings of the
Nature Municipal in International in a treaty most highly
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Persons Dealt with by Sovereign States
involved private and other entities
individuals; possessing SOURCES OF CONFLICT OF LAWS
governs international
individuals in personality, e.g., Direct Indirect
their private UN; governs Constitutions Natural Moral Law
transactions States in their Codifications Work of Writers
which involve relationships Special Laws
a foreign amongst International Customs
element themselves
—Adviser: Dean Cynthia del Castillo Head: Joy Ponsaran, Eleanor Mateo; Understudy: Joy Tajan, John Paul Lim;
Subject Head: Laarni Pichay;
Civil Law Summer Reviewer
ATENEO CENTRAL BAR OPERATIONS 2007
Treatises and
International 12. Lex Non Scripta - the unwritten common law,
Conventions which includes general and particular customs
Judicial Decisions and particular local law
3. Lex Loci - law of the place 16. Double Renvoi – occurs when the local court, in
adopting the foreign court theory, discovers that
4. Lex Loci Contractus - the law of the place the foreign court accepts the renvoi; ultimately
where the contract was made or law of the place then, it is the foreign internal law that will be used
where the contract is to be governed (place of
performance) which may or may not be the same 17. Desistment – mutual disclaimer of jurisdiction
as that of the place where it was made
18. Foreign Court Theory – the local forum, in
5. Lex Loci Rei Sitae - law of the place where the deciding the case, will put itself in the position of
thing or subject matter is situated; the title to the foreign court, and whatever the foreign court
realty or question of real estate law can be will do respecting the case, the local forum will
affected only by the law of the place where it is likewise do
situated
19. Nationality Theory - by virtue of which the status
6. Lex Situs - law of the place where property is and capacity of an individual are generally
situated; the general rule is that real property is governed by the law of his nationality. This is
governed by the law of the State where it is principally adopted in the RP.
situated
20. Domiciliary Theory - in general, the status,
7. Lex Loci Actus - law of the place where the act condition, rights, obligations, & capacity of a
was done person should be governed by the law of his
domicile.
8. Lex Loci Celebrationis - law of the place where
the contract is made 21. Long Arm Statutes - statutes allowing the courts
to exercise jurisdiction when there are minimum
9. Lex Loci SolutionisQuickTime™ - lawand of the place of contacts between the non-resident defendant
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performance of a contract is to be made
CHAPTER 2: JURISDICTION
10. Lex Loci Delicti Comissi - law of the place
where the crime took place • In international law, it is often defined as the right
of a State to exercise authority over persons and
11. Lex Mercatoria - law merchant/commercial law; things within its boundaries, subject to certain
system of laws adopted by all commercial nations exceptions.
and constitute as part of the law of the land; part
of common law JURISDICTION OVER THE PERSON
• Jurisdiction over the subject matter is conferred • NOTE: As a general rule, courts do not take
by law judicial notice of foreign laws; foreign laws must
be pleaded and proved
• The following actions may be resorted in case of
failure to prove and plead the proper foreign law: it is as if the foreign law has become part &
i. Dismiss the case for inability to establish parcel of our local law
cause of action 4. Theory of Harmony of Laws – we have to apply
ii. Assume that the foreign law of the same as the foreign laws so that wherever a case is
the law of the forum (processual decided, that is, irrespective of the forum, the
presumption) solution should be approximately the same; thus,
iii. Apply the law of the forum identical or similar solutions anywhere &
everywhere. When the goal is realized, there will
3. The case falls under any of the exceptions to the be “harmony of laws”
application of foreign law. 5. Theory of Justice – the purpose of all laws,
• EXCEPTIONS: including Conflict of Laws, is the dispensing of
a. The foreign law is contrary to the public justice; if this can be attained in many cases
policy of the forum applying the proper foreign law, we must do so.
b. The foreign law is procedural in nature
c. The case involves issues related to property, CHAPTER 4: RECOGNITION AND
real or personal (lex situs) ENFORCEMENT OF FOREIGN JUDGMENTS
d. The issue involved in the enforcement of
foreign claim is fiscal or administrative • A foreign judgment is recognized when it is
e. The foreign law or judgment is contrary to given the same effect that it has in the state
good morals (contra bonos mores) where it was rendered with respect to the parties,
f. The foreign law is penal in character the subject matter of the action and the issues
g. When application of the foreign law may work involved. Where the foreign judgment is being
undeniable injustice to the citizens of the presented as a defense to the claim of the
forum plaintiff, what is involved is the recognition of a
h. When application of the foreign law might foreign judgment.
endanger the vital interest of the State • A foreign judgment is enforced when, in addition
to being recognized, a party is given affirmative
4. ASSUME JURISDICTION AND APPLY relief to which the judgment entitles him. When a
FOREIGN LAW plaintiff asks the court of one state to carry out
and make effective a judgment obtained by him
• As a general rule, no rule of Private International in another state, what is involved is the
Law would be violated if the courts should decide enforcement of a foreign judgment.
to dispose of cases, according to the internal law
of the forum REQUISITES FOR RECOGNITION AND
ENFORCEMENT OF FOREIGN JUDGMENTS
• EXCEPT: Where a foreign, sovereign, diplomatic
official, or public vessel or property of another 1. Foreign judgment was rendered by a judicial or a
state is involved, or where a state has by treaty, quasi-judicial tribunal which had competent
accepted limitations upon its jurisdiction over jurisdiction over the parties and the case in the
certain persons or things. proper judicial proceedings in which the
defendant shall have be given reasonable
THEORIES WHY FOREIGN LAW SHOULD BE notice and the opportunity to be heard.
GIVEN EFFECT: 2. It must be a judgment on civil and commercial
matters.
1. Theory of Comity – foreign law is applied 3. The judgment must be valid according to the
because of its convenience & because we want
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4. Judgment must be final and executory to
transients in our land constitute res judicata in another action;
2. Theory of Vested Rights – we seek to enforce • ELEMENTS: The judgment must be
not foreign law itself but the rights that have been a. Final
vested under such foreign law; an act done in b. Rendered by a competent court
another State may give rise to the existence of a c. On the Merits
right if the laws of that State crated such right. d. Involve the same parties, subject matter and
3. Theory of Local Law- we apply foreign law not cause of action.
because it is foreign, but because our laws, by 5. Foreign judgment must not be contrary to the
applying similar rules, require us to do so; hence, public policy or the good morals of the State
STATUTE OF LIMITATIONS
DISTINCTION BETWEEN RECOGNITION AND
ENFORCEMENT 1. Substantive – When the limitation was directed
RECOGNITION OF ENFORCEMENT OF
FOREIGN JUDGMENT FOREIGN JUDGMENT
PROOF OF FOREIGN LAWS
Courts will allow the Plaintiff wants courts to
1. Written Law foreign judgment to positively carry out and
a. By written publication be presented as a make effective in the
b. Copy attested to by the officer having defense to a local State a foreign
custody accompanied with a certificate that litigation judgment
such officer has the custody and sealed by Involves merely the Virtually implies a direct
the appropriate public officer (section 24 rule sense of justice act of sovereignty
132 of the Revised Rules of Court) Does not require Necessitates a
either an action or a separate action or
2. Unwritten Law special proceeding proceeding brought
• By the oral testimony of expert witnesses or precisely to make the
writings of jurists foreign judgment
effective
EFFECTS OF FOREIGN JUDGMENTS May exist without Necessarily carries with
enforcement it recognition
• Under the Rules of Court, in case of a judgment For BOTH recognition and enforcement, proof
against a specific thing, the judgment is of the foreign judgment has to be presented.
conclusive upon the title of the thing. Moreover, the requisites or conditions for the
• In case of a judgment against a person, the recognition or enforcement of foreign judgments
judgment is presumptive evidence of a right as must be present.
between the parties and their successors-in- to the newly created liability specifically to
interest by a subsequent title; but the judgment warrant a qualification of the right
may be repelled by evidence of want of 2. Procedural – If it operates to bar the legal
jurisdiction, want of notice to the party, collusion, remedy without impairing the substantive right
or clear mistake of law or fact. involved.
1. The nationality of a person, his domicile, either the nationality of the country of which he is
residence, his place of sojourn, or his origin. habitually and principally resident, or the
2. The seat of legal or juridical person nationality of the country with which in the
3. Lex Situs circumstances he appears to be closely
4. Locus Actus connected.”
5. The place where the act is intended to take
effect, the place of performance of contractual MULTIPLE CITIZENSHIP ARISES DUE TO:
duties, or the place where the power of attorney a. Through a Naturalized Citizen’s Failure to
is to be exercised Comply with Certain Legal Requirements in
6. Lex loci intentionis the country of origin
7. Lex fori – applies to procedural matters and b. From a combined application of Jus Soli and
whenever the content of the otherwise applicable Jus Sanguinis principle
foreign law is excluded from application in a c. By the legislative Act of States
givem case for the reason that it fails under one d. By the voluntary Act of Individual concerned
of the exceptions to the application of foreign law.
8. The flag of the ship, which in many cases is 2. STATELESSNESS
decisive of practically all legal relationships of the • Stateless persons are generally subject to the
ship and of its master or owner as such. law of their domicile or habitual residence, or in
default thereof, to the law of their temporary
CHAPTER 6: PERSONAL LAWS residence.
• The law which governs a person’s family STATELESSNESS ARISES DUE TO:
relations, capacity or status. a. Deprivation of his citizenship for any cause,
• Three most common personal laws are the such as commission of a crime
Nationality Rule, Domiciliary Rule, Eclectic b. Renunciation of one’s nationality by certain
Theory acts, express or implied;
c. Voluntary release from his original state;
NATIONALITY LAW THEORY d. If born in a country which recognizes only the
principle of jus sanguinis of parents whose
• The Philippines adheres to the nationality law law recognizes only the principle of jus soli
theory. • NOTE: The Convention on the Adoption on the
Reduction of Statelessness (1961) mandates that
Art. 15. Laws relating to family rights and duties, the jus sanguini country grants its nationality to
or to the status, condition and legal capacity of person born within its territory if he would be
persons are binding upon citizens of the otherwise stateless, and the jus soli country to
Philippines, even though living abroad. extend its nationality to a person who would
otherwise be considered stateless when of his
PROBLEMS IN APPLYING THE NATIONALITY parents is a citizen of the contracting state.
PRINCIPLE
DOMICILIARY THEORY
1. MULTIPLE CITIZENSHIP
• The individual’s private rights, status, capacity
• In matters of status, he is usually considered by and conditions are determined by his domicile.
the forum as exclusively his own national, his
additional foreign nationality is disregarded DOMICILE
• In case the litigation arises
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applied • Is that place where a person has certain settled,
country of which the person is not only a national fixed, legal relations because:
but where he has his domicile or habitual 1. it is assigned to him by law at the MOMENT OF
residence, or in the absence thereof, his BIRTH (domicile of origin)
residence. 2. It is assigned to him by law AFTER BIRTH on
account of legal disability caused for instance by
• NOTE: Article 5 of the Hague Convention on the minority, insanity or marriage in the case of a
Conflict of Nationality laws provides: “ a third woman (constructive domicile or domicile by
state shall, of the nationalities which such person operation of law)
possesses, recognize exclusively in its territory 3. he has a HOME there – that to which whenever
court ward
LAWS REGULATING RELATIONS BETWEEN
2) powers of 2) coextensive with those of LEGITIMATE/D CHILDREN AND PARENTS
guardian the appointing court (law of
the appointing state) • Personal law of the father controls the rights and
duties of parents and children.
b) over the • EXCEPT: parental interest in the immovable
property property of the child which may be regulated by
1) appointing 1) court where the property is the lex situs.
court found (lex rei sitae) • NOTE: Reference to the personal law of the
father may result in joint exercise of parental
2) powers of 2) coextensive with those of authority over the property of the child by father
guardian the appointing court (law of and mother (Art. 221, Family Code). Father’s
the appointing state) personal law could grant parental authority to the
mother of the illegitimate children (Art. 176,
c) over the person c) see 3(a) and 3(b) Family Code).
and over the • NOTE: Change in the nationality of the male
property parent affects the consequent relations between
4. Funerals Where the body is buried. the parents and child.
GOVERNING LAWS 1. Done in the Philippines - Lex loci actus (of the
revocation) (Article. 829)
1. If the Testator is a FILIPINO 2. Done outside of the Philippines:
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b. Executed in foreign country – i. Lex loci celebrationis (of the making of
i. Lex nationalii the will, NOT revocation)
ii. Lex loci celebrationis (Article 817) ii. Lex domicilii (Article 829)
2. If the Testator is an ALIEN b. By a domiciliary of the RP
a. Executed in the Philippines i. Lex domicilii (RP law)
i. Lex nationalii ii. Lex loci actus (of the revocation) (Article
ii. Lex loci celebrationis (Article 815) 17)
b. Executed abroad
i. Lex nationalii PROBATE OF WILLS
a. Where the State of Injury provides for higher 2. If the tort takes place aboard a private or
standard of conduct or financial protection merchant vessel on the high seas , the law of
against injury than the State where the the flag is likewise the lex loci delicti commissi.
tortious act was done, the law of the former 3. If the tort concerns property, whether real or
shall govern. personal, the lex situs is usually also the lex loci
b. Where the State of injury and conduct delicti commissi.
provides for lower standard of conduct and 4. Maritime torts
financial protection than the home State of a. if the colliding vessels are of the same state, or
the person suffering the injury, the law of the carry the same flag, said law is the lex loci
State of conduct and injury shall govern. delicti commissi
c. Where the State in which the defendant has b. if the vessels come from different states,
acted has established special controls over whose laws however, on the matter are
conduct of the kind in which defendant was identical, said laws constitute the lex loci delicti
engaged, the special controls and benefits commissi.
must be applied although the State has no c. if the vessels come from different states with
relationship to the defendant. different laws, the lex loci delicti commissi is
d. Where the law in which the relationship has the general maritime law as understood and
its seat imposed higher standard of conduct applied by the forum where the case is tried.
or financial protection than the law of the
State of the injury, the former law shall
govern. Le Forest v. Tolman – In order to successfully
maintain an action of tort, the act which is the
CONDITIONS FOR THE ENFORCEMENT OF TORT cause of the injury and the foundation of the
CLAIMS action must at least be actionable or
punishable by the law of the place in which it
• The tort is not penal in character was done, if not also by the law of the place
• If the enforcement of the tortious liability won’t here redress is so ght
contravene our public policy
• If our judicial machinery is adequate for such
enforcement
CHAPTER IV: CRIMES
PHILIPPINE RULE
• Salonga suggests for the following methodology • GENERAL RULE: The essential elements of a
in solving Torts Problems in the Phils: crime and its penalties are generally determined
a. Ascertain and weigh the purpose underlying by the law where the crime was committed (locus
the tort law of the forum. If the Tort law of the regit actum).
Philippines embodies a social or economic • EXCEPTIONS:
policy, then the law of the forum on Torts 1. crimes committed by state officials, diplomatic
shall be applied. representatives and officials of recognized
b. If the Philippines has no concern or interest international organizations (based on the theory
in the application of the internal law and the of state immunity from suits)
other States have interest, apply the law of 2. crimes committed on board a foreign vessel even
such state. if within the territorial waters of the coastal state,
• NOTE: the State where an injury has occurred as long as the effect of such crime does not
has interest in compensating the injured party. affect the peace and order of the coastal state
Whereas, the State where QuickTime™ the
and aactor has acted
3. crimes which, although committed by Philippine
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the picture. of persons nationals abroad are punishable under the local
found in its territory. law pursuant to the protective principle of criminal
jurisdiction (ie.e. Art 2 of the RPC)
SPECIAL RULES
THEORIES AS TO WHAT COURT HAS
1. If the tort is committed aboard a public vessel, JURISDICTION
whether on the high seas or in foreign territorial
waters, the country to which the vessel belongs is 1. Territoriality theory – where the crime was
the locus delicti; the law of the flag is thus the lex committed
loci delicti commissi. 2. Nationality theory – country which the criminal
MULTI-NATIONAL CORPORATIONS
PARTNERSHIPS
FACTUAL SITUATION POINTS OF CONTACT
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The existence or non- The personal
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are needed to see this picture.
existence of legal the partnership, i.e.,
personality of the firm; the law of the place
the capacity to where it was created
contract; liability of (Article 15 of the Code
the firm & the partners of Commerce)
to 3rd persons (Subject to the
exceptions given
above as in the case
of corps.)