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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
personality are
generally no
concerned and
interest
which generally
affect public
interest
As to remedies
The concerned
Recourse is had
applied
states may first
to 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
Natural moral law
Chapter 2
Jurisdiction and choice of law
How one deals with a problem in Conflict of Laws
1. First, determine whether the court has jurisdiction
over the case.
If it has no jurisdiction, the case should be
dismissed
If it has jurisdiction, the court will
determine whether it should assume
jurisdiction over the case or dismiss it on
the ground of forum non conveniens
It is the law of the forum that determines
whether the court has jurisdiction over the
case
2. It will next determine whether to apply the internal
law of the forum or the proper foreign law
Three kinds of jurisdiction
1. Jurisdiction over the subject matter
2. Jurisdiction over the person
3. Jurisdiction over the res
Jurisdiction over the subject matter
Conferred by law
Defined as the power to hear and determine cases
of the general class to which the proceedings in
question belong
Cannot be conferred by consent of the parties or
by their voluntary submission
Must be invoked by filing the proper complaint or
petition with the court.
Note: In the realm of Conflict of Laws, however, there
is another element which the court must consider in
determining the matter of jurisdiction the possible
enforceability of its decision in foreign states, subject to
the rights of said states.
Jurisdiction over the person
The competence or power of a court to render a
judgment that will bind the parties involved
Jurisdiction over the plaintiff: Acquired the
moment he invokes the power of the court by
instituting the action by the proper pleading
Jurisdiction over the defendant: Acquired when
he enters his appearance or by the coercive power
of legal process exerted by the court over him
personal or substituted service of summons
o
EX: If appearance is for the sole purpose
of questioning the jurisdiction of the court.
Note: Question of erroneous service of summons must
be raised before judgment is rendered, or this would be
a case of waiver. Defective service may be cured by
actual receipt of summons or if in any other manner,
knowledge of the existence of the case
Jurisdiction over the Res
Jurisdiction over the particular subject matter in
controversy, regardless of the persons who may be
interested therein
The basis of the exercise of this jurisdiction is the
presence of the property within the territorial
jurisdiction of the forum even though the court
may not have personal jurisdiction over the
Page 1 of 22
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
Conflict of Laws
that said foreign law is the same as its local or domestic
law, which it can now apply
Exceptions to the applications of a foreign law
1. When the application of the foreign law would run
counter to a sound and established public policy of
the forum
2. When the foreign law is contrary to the almost
universally conceded principles of morality (contra
bonos mores)
3. When the foreign law involves procedural matters
EX: When the law is both procedural and
substantive
4. When the foreign law is penal in character
EX: A penal clause in a contract may
however be enforced here because such
clause is not criminal in nature but
provides only for liquidated damages
5. When the law is purely fiscal (i.e., revenue
producing) or administrative in nature
6. When the foreign law might work undeniable
injustice to the citizens or residents of the forum
7. When the application of the foreign law would
endanger the vital interests of the State
8. When the case involves real or personal property
located in our country
Chapter 3
Theories that justify the application of the foreign law
Theories that justify the application of the foreign law
instead of domestic or internal law
1. Theory of comity
2. Vested right theory
3. Theory of local law
4. Theory of harmony of laws
5. Theory of justice
Theory of comity
According to this theory, no foreign law would be allowed to
operate in another state except by the comity of nations
Comity
The recognition which one state allows within its
territory, to the legislative, executive, or judicial acts of
another nation
Two principles upon which the theory of comity
rests
1. The comity based on reciprocity
2. The comity based on the persuasiveness of a
foreign judgment
Our Civil Procedure still follows the
principle of reciprocity because in
Sec. 48, Rule 39, a foreign final
judgment or order is presumptive
evidence of a right as between the
parties and their successors in
interest
The vested-rights theory
Under this theory, our courts enforce not the foreign law or
foreign judgment but the right or rights that have been
vested under such law or judgment.
Rights once acquired should be enforced regardless
of where the suit for its enforcement was filed.
Page 3 of 22
Conflict of Laws
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
Citizenship
A citizen is one who owes
allegiance to and is entitled
to the protection of the
State
nationality and citizenship
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
2.
Citizens by naturalization
Those who were formerly aliens but by
judicial, legislative, or administrative
process, have become Filipino citizens
Jus sanguinis
It is citizenship by blood
This is the rule that we
follow in the Philippines
Conflict of Laws
Effective nationality theory
Within a third state, a person having more than one
nationality shall be treated as if he had only one. Without
prejudice to the application of its law in personal matters
and of any conventions in force, a third state shall apply the
nationalities which any such person possesses, recognize
exclusively in its territory either the nationality of the
country in which he is habitually and principally a resident,
or the nationality of the country with which in the
circumstances he appears to be in fact mostly connected
The law of the country of which the deceased was
both a citizen and a domiciliary at the time of her
death is considered more effectively connected to
her than her other national law.
Derivative naturalization
Philippine citizenship conferred on:
1. The wife of a naturalized husband
2. The minor children of a naturalized father
3. The alien wife of a natural born or naturalized
citizen, in the latter case, the marriage having
taken place after the husbands naturalization
Page 5 of 22
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.
Page 6 of 22
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.
Art. 50 of the CC: For the exercise of civil rights
and fulfillment of civil obligations, the domicile of
natural persons is the place of their habitual
residence
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. Domicile of origin: The domicile assigned by law
to a person at the moment of his birth
2. Constructive domicile or domicile by
operation of law: The domicile assigned by law to
a person after birth on account of a legal disability,
like minority, insanity, imprisonment, etc.
3. Domicile of choice: The domicile of a person sui
juris because he has his home there and to which,
whenever absent, he intends to return
Principles regarding ones domicile of choice
1. No person can ever be without a domicile or every
natural person must have a domicile
2. A person cannot have two simultaneous domiciles
3. A natural person, free (not a prisoner) and sui juris
(one of age and under no disability), can change
his domicile at pleasure
4. A domicile, once acquired, is retained until a new
one is gained
5. The presumption being in favor of the continuance
of an existing domicile, the burden of proof is on
the one who alleges that a change of domicile has
taken place
6. To acquire a new domicile of choice, the following
must concur:
(1) Residence or bodily presence in the new
locality
(2) An intention to remain there (animus
manendi) and
(3) An intention not to return to the former
abode (animus non revertendi)
Rules determining ones domicile of origin
If the child is legitimate
His domicile of origin is that
of his parents at the time of
his birth
Conflict of Laws
If a foundling
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. If participation is active When he does an act
voluntarily, the governing law is the law of the
actual situs of the transaction or event
2. If the participation is passive When the
effects of the act are set forth or determined by
law, the governing law is the law of the legal
situs, i.e., the domicile of the individual concerned
Chapter 10
The problem of the renvoi
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
3. Follow the theory of desistment or the mutual
disclaimer of jurisdiction theory
Refrain from applying the national law of
the deceased foreigner, although our law
tells us to do so.
If said law follows the domiciliary theory
and directs that we apply the law of the
domicile of the deceased, so in the end,
we still apply Philippine law
Page 8 of 22
Conflict of Laws
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
Chapter 11
Conflict rules on status and capacity
When human personality begins under our law
Art. 40, NCC: Birth determines personality, but
the conceived child shall be considered born for all
purposes that are favorable to it, provided it be
born later with the conditions specified in the
following article
Art. 41, NCC: For civil purposes, the fetus is
considered born if it is alive at the time it is
completely delivered from the mothers womb.
However, if the fetus had an intra-uterine life of
less than 7 months, it is not deemed born if it dies
within 24 hours after its complete delivery from the
maternal womb
Personality really begins at conception, subject to the
following conditions:
1. The purpose is favorable to the fetus
2. If it is born alive under Art. 41 of the NCC
Two kinds of children
1. Ordinary With an intra uterine life of at least 7
months
2. Extraordinary With an intra-uterine life of less
than 7 months, in which case it must live for at
least 24 hours after complete delivery from the
mothers womb
Note: In Conflict of Laws, personal law determines the
beginning of ones personality.
Civil personality, when extinguished
Art. 42 of the NCC: Civil personality is extinguished by
death
Refers to physical death not civil death
A declaration of death in accordance with ones
personal law (whether his national law or the law
Lesley Claudio (A 2012)
Conflict of Laws
his personal law to govern
his status wherever he goes
Marriage between a
Filipino and a foreigner in
the PHILIPPINES
Page 10 of 22
Conflict of Laws
2.
1.
2.
legal effects
Void marriage
It cannot be convalidated
The only property
relationship between the
parties is a co-ownership
The children are illegitimate,
except children of void
marriages under Art. 36 and
53 of FC
Art. 36 children born
under marriage that is void
on the ground of psy.
Incapacity
Art. 53 children born of
the first marriage of parties
before said first marriage
had been annulled or
declared void, and those
who marry a second time
without delivering the
presumptive legitime of the
children of their first
marriage
Page 11 of 22
Conflict of Laws
The marriage cannot be
attacked collaterally
The marriage can no longer
be impugned after the death
of the spouses
2.
3.
4.
5.
Divorce
Absolute divorce, dissolves
the marriage and the parties
can marry again
Page 12 of 22
Conflict of Laws
2.
Page 13 of 22
Conflict of Laws
Adoption by aliens in the Philippines
Under RA 8552 or the Domestic Adoption Act of 1998, aliens
(who are not even former Filipino citizens) can adopt in our
country, provided:
1. The have the same qualifications as those required
of Filipino citizens
2. Their countries have diplomatic relations with our
country
3. They have been living in the Philippines for at least
3 years prior to the filing of the petition for
adoption, and maintain such residence until the
adoption decree is entered
4. The have been certified by their diplomatic or
consular offices or by any appropriate government
agency that they have the legal capacity to adopt
in their own countries and
5. Their government allows the adopted child to enter
their own country as their adopted child
Special aliens who can adopt under RA 8552
1. A former Filipino citizen who seeks to adopt a
relative within the 4th degree of consanguinity or
affinity
2. One who seeks to adopt the legitimate son or
daughter of his or her Filipino spouse
3. One who is married to a Filipino citizen and seeks
to adopt jointly with his or her spouse a relative
within the 4th degree of consanguinity or affinity of
the Filipino spouse
These aliens need not comply with the residency in the
Philippines and they also need not submit a certification that
they have the capacity to adopt from the diplomatic or
consular office of their country in the Philippines or any
other government agency
Note: RA 8552 still requires that the (alien) husband and
wife must jointly adopt. However in cases where the
spouses are legally separated, the husband or the wife can
adopt alone, and the consent of the other spouse to an
adoption filed by one spouse is not necessary
Nature of adoption in Philippine law
1. Adoption proceedings are always judicial an din
rem, i.e., publication is required
2. A mere agreement of adoption between the
adopters and the parents of the child is not a valid
adoption, nor the fact that the child had been
adopted de facto (ampon) by the alleged adopting
parents
3. Neither is mere registration of the child in the civil
registry as the child of the adopter a valid
adoption. This even amounts to the crime of
simulation of birth
4. The capacity and right of the adopter to file a
petition for adoption are governed by the law in
force at the time the petition is filed, and cannot be
impaired by a new law disqualifying him or her for
adoption
Recognition of a foreign decree of adoption
While there is no provision of law nor jurisprudence
expressly requiring the Philippines to recognize a foreign
decree of adoption, it is believed that under Sec. 48 of Rule
39 of the Rules on Civil Procedure, we can recognize such
foreign decree of adoption provided the foreign court had
jurisdiction to render said decree, and that there is no want
of notice, collusion, extrinsic fraud, or clear mistake of law
or fact leading to the foreign decree of adoption
of wills
Intrinsic validity
Substance of wills
Concerns itself with:
1. Order of succession
2. Amount of
successional rights,
and other matters
of substance
Page 14 of 22
Conflict of Laws
2.
3.
4.
5.
6.
3.
4.
5.
Administrator
with a will
annexed
Appointed by
the court if
there is a will
but no executed
is designated
therein
Administrator
Appointed by
the court if
there is no will
Ancillary
administration
Administration in other
countries where the
Page 15 of 22
Conflict of Laws
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.
Given artificial status since did not have fixed status
personal law of the owner
Philippine rule on personal properties
Art. 15 of the CC real property as well as personal
property is subject to the law of the country where it is
situated
Matters governed by lex situs with respect to real
property
1. Extrinsic validity
2. Intrinsic validity
3. Capacity of contracting parties
4. Interpretation of documents
5. Effects of ownership
6. Co-ownership
7. Accession
8. Usufruct
9. Lease
10. Easement
11. Quieting of title
12. Registration
13. Prescription
14. Police power
15. Eminent domain
16. Taxation
Exceptions to the rule on lex situs with respect to real
properties
1. Succession governed by national law (in
Philippines) not lex situs
Lesley Claudio (A 2012)
2.
3.
4.
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
Conflict of Laws
determines whether
the instrument is
negotiable or not
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
Variations to the rule of lex loci intentions in
determining extrinsic validity of contracts
1. A contract entered into by parties in two different
countries by cablegram, telex, or fax
Art. 1319 par. 2: Acceptance made by
letter or telegram does not bind the
offeror except from the time it came to his
knowledge. The contract in such a case is
presumed to have been entered in the
place where the offer was made
American law: contract is deemed
entered into in the place where the
acceptance of the offer is posted or mailed
2. Place of execution was merely casual or accidental
The law which has the most significant
relationship to the transaction should be
applied
3. (EX) When the lex loci contractus/lex loci
celebrationis contravenes an established and
important policy of the forum, or to apply it would
work gross injustice to the people of the forum, or
if the transaction is contra bonos mores
Conflict rules in determining capacity of parties to a
contract
GR: Capacity to enter into contracts is generally governed
by the personal law of the parties
In Phil., Art. 15 NCC: Capacity of a Filipino is
governed by Philippine law (nationality theory)
Page 17 of 22
Conflict of Laws
EX: Contracts involving alienation or encumbrance of
property both real and personal capacity is governed by
the lex situs
Conflict rules in determining intrinsic validity of
contracts
1. GR: Intrinsic Validity of contracts is governed by
the proper law of the contract lex loci voluntatis
or lex loci intentionis
2. American Law (Second Restatement):
(1) law to be applied should be the law
chosen by the parties
(2) If none, the law of the state which has the
most significant relationship to the parties
or to the transaction
3. Prof. Raleigh Minor advocates application of
different laws:
(1) As to the perfection of contract: lex loci
celebrationis
(2) As to the validity of the consideration
lex loci considerationis
(3) As to questions of performance lex loci
solutionis
Philippine conflict rules on intrinsic validity of
contracts
1. We have no specific provision of law applicable to
conflict rules on the intrinsic validity of contracts
However the policy of our law is to give
effect to the intention of the parties
2. We should apply the proper law of the contract (lex
loci voluntatis (express) or lex loci intentionis
(implied)
Limitations to the courts choice of law in determining
the intrinsic validity of contracts
1. Generally, the parties cannot select a law that has
no connection at all with the transaction
2. If the law selected should change, it is the new law
that should be applied
EX: Change of new law is so revolutionary
that it could never have been
contemplated by parties
3. Several laws may be selected, each of which will
govern the different elements of the transaction
4. If under the selected law, the contract is legal but
in the place of performance, it is illegal, the
selected law should prevail (valid contract)
5. Questions of substantial and essential validity
(void, valid, voidable) of the contracts should be
governed by the proper law of the contracts
Minor details: time of payment, etc.
should be governed by the law of
performance
6. Parties cannot stipulate on the jurisdiction of the
courts our oust or courts jurisdiction
7. The parties cannot contract away applicable
provisions of law
8. American law recognizes cognovit clauses if the
parties were of equal bargaining power and debtor
and the debtor voluntarily agreed to said clause
Cognovit clauses: specify which courts
would have jurisdiction in case of breach
or default in payment, or it may waive
debtors right to notice (confession of
judgment)
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
Note: Agency
to alienate or
encumber real
property is
governed by lex
situs
Contract of
transportation
or carriage
(render
services)
Lex loci
celebrationis
Intrinsic
validity
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)
If COGSA applies, limiation on
liability applies, unless the shipper
declares value of goods and inserts
such declaration in the bill of lading
Contract for air transportation
(Warsaw Convention)
1. The liability of the airline in case
of death, injury to passengers,
or loss or damage to cargo is
governed by Warsaw
Convention
2. If there was malice, gross
negligence, or bad faith, or
improper discrimination, carrier
is liable for damages beyond
those limited by Warsaw
Convention
Page 18 of 22
Conflict of Laws
Tort, defined
Legal wrong committed upon person or property
independent of contract
Spanish law: quasi delict/culpa aquiliana fault or
negligence
American law: broader fault or negligence and
also those committed with malice or willful intent
Concept of tort in the Philippines
Blending of both Spanish and American laws
Art. 20 NCC: Every person who, contrary to law,
willfully or negligently causes damage to another,
shall indemnify the latter for the same.
Art. 2176 NCC: Whoever by act or omission
causes damage to another, there being fault or
negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a
quasi-delict and is governed by the provisions of
this Chapter.
Law governing liability for torts in Conflict of Laws
Liability for torts in general is governed by the lex loci delicti
commissi (law of the place where the delict or wrong was
committed)
State where the social disturbance occurred has
the primary duty to redress the wrong and
determine the effects of the injury; and
To compensate victim for the damage or injury
suffered
Three theories in determining locus delicti
1. Civil law theory The locus delicti is the place
where the act began
2. Common law theory The locus delicti is the
place where the wrongful act became effective
3. Theory of Dr. Rabel The locus delicti is the
place which has the most substantial connection
with the wrongful act
Modern theories in determining liability for torts
1. State of the most significant relationship the
rights and obligations of parties in a case of tort is
determined by the local law of the state which,
with respect to the particular issue, has the most
significant relationship to the occurrence and the
parties
2.
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
Page 19 of 22
Conflict of Laws
Transitory in character
tortfeasor can be made
liable for his wrongful act in
any jurisdiction where he
may be found
Nationality or personal
theory
Protective theory
Cosmopolitan or
universality theory
Passive personality or
passive nationality theory
Objective territorial
principle
The state can prosecute
crimes began abroad but
completed within its territory
The country of which the
criminal is a citizen or
subject has jurisdiction to
try him for crimes allegedly
committed by him, whether
inside or outside its
territory, provided it is a
crime under said countrys
penal law
Any state whose national
interests may be
jeopardized has jurisdiction
over criminal offenses, even
if it is committed outside its
territory and even if
committed by an alien
Any state whose penal code
has been transgressed upon
has jurisdiction, whether the
crime was committed inside
or outside its own territory
Any state where the criminal
is found or which has
obtained custody over him
can try him, unless
extradition applies
The state of which the victim
is a victim or subject has
jurisdiction to prosecute the
offense
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 20 of 22
Conflict of Laws
Theories in determining the personal law or
governing law of a corporation
1. The theory that the personal law is the law of the
place of incorporation
2. The theory of the place or center of management
3. The theory of the place of exploitation
Note: In the Philippines, we follow the theory of the place of
incorporation
Domicile of a corporation
Art. 51 of NCC: When the law creating or recognizing them,
or any other provision does not fix the domicile of judicial
persons, the same shall be understood to be the place
where their legal representation is established or where
they exercise their legal functions
Under Corporation Code, the place of incorporation
of a Philippine corporation is also its domicile
As for a foreign corporation that has been granted
a license to operate or to do business in the
Philippines, it acquires domicile in this country by
virtue of said license
Exceptions to the theory that the personal law or the
nationality of a corporation follows the place of its
incorporation
1. For constitutional purposes even if a corporation
was incorporated in the Philippines, it cannot
exploit or develop our natural resources nor
operate public utilities unless 60% of the capital is
Filipino owned (Constitution)
2. For wartime purposes We adopt the control test
we pierce the veil of corporate identity and go
into the nationality of the controlling stockholders
to determine whether a corporation is an enemy
corporation
Matters that are governed by the personal law of the
corporation
1. Requisites for the formation of the corporation
2. Required number of incorporators and the
members of the board of directors
3. The kinds of shares of stock allowed
4. The transfer of stocks
5. The issuance, amount, and legality of dividends
6. The powers and duties of the officers, stockholders,
and members
Law that determines the validity of corporate acts and
contracts
Determined by the place of incorporation AND by the law of
the place of performance
May a foreign corporation sue and be sued in the
Philippines?
Yes, if it has the necessary license to do business in the
Philippines. The license is required not to forbid the foreign
corporation from performing single acts but to prevent it
from acquiring a domicile for purposes of business without
taking the steps necessary to render it amenable to suit in
the local courts
Jurisdiction over foreign corporations doing business
in the Philippines, how acquired
By service of summons on:
1. Its resident agent
2. If no such agent, on the government official
designated by law to that effect; or
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
Involves merely a sense of
justice
Being a matter of defense,
recognition needs no action
or proceeding but implies
that an action or proceeding
has already been filed
against the defendant who is
invoking the foreign
judgment
Recognition does not need
or does not require
enforcement
Page 21 of 22
Conflict of Laws
Page 22 of 22