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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 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
Natural moral law
Lesley Claudio (A 2012)
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
3.
Conflict of Laws
Page 3 of 22
Conflict of Laws
3.
4.
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
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
Capacity
Only part of ones status and
may be defined as the sum
total of his rights and
obligations
Nationality v. citizenship
Nationality
Refers to membership in a
political community, one that
is personal and more or less
permanent, not temporary.
In the field of Conflict of Laws,
are the same
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
Page 4 of 22
Conflict of Laws
Note: Each country or state has the sole power and
authority to determine under its internal or municipal law
who are its citizens or nationals
Dual allegiance under Sec. 5, Article IV of the
Constitution
The provision in the Constitution (dual allegiance of citizens
is inimical to national interest and shall be dealt with by
law) is concerned not with dual citizenship per se but with
naturalized citizens of the Philippines who still maintain their
allegiance to the countries of their origin.
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.
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
Page 7 of 22
Conflict of Laws
If the child is adopted
If a foundling
permanent residence
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
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.
Page 9 of 22
Conflict of Laws
Marriage between a
Filipino and a foreigner in
the PHILIPPINES
Conflict of Laws
3.
Personal relations:
national law of the husband
shall govern (GR)
Constitution provides that
she shall retain her
Philippine citizenship, unless
by her act or omission, she
is deemed, under our law, to
have renounced her
citizenship
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
Page 11 of 22
Conflict of Laws
Divorce
Absolute divorce, dissolves
the marriage and the parties
can marry again
Page 12 of 22
Conflict of Laws
3.
2.
Page 13 of 22
Conflict of Laws
Law which determines whether the relationship of
adoption has been created or not
1. The childs personal law
2. If the child does not reside in the country of his
citizenship the personal law of the adopter will
govern, or the personal law of the adopter and that
of the child will be applied concurrently
Law which determines the legal effects of adoption
The legal effects of adoption are determined by the same
law that created the relationship 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
Conflict of Laws
3.
4.
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
Page 15 of 22
Conflict of Laws
3.
4.
5.
6.
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.
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
Lesley Claudio (A 2012)
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
Effects of ownership
Co-ownership
Accession
Usufruct
Lease
Easement
Quieting of title
Registration
Prescription
Police power
Eminent domain
Taxation
Voluntary assignment
Other theories:
1. The law of the
place where the
Page 16 of 22
Conflict of Laws
or transfer of credit
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
Page 17 of 22
Conflict of Laws
2.
3.
6.
7.
8.
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
Lex loci
celebrationis
Personal
law of
parties
Lex loci
volntatis
or lex loci
intentionis
Lex loci
celebrationis
Personal
law of
parties
Lex loci
voluntatis
Extrinsic
validity
Intrinsic
validity
Lex situs
Note: Agency
to alienate or
encumber real
property is
governed by lex
situs
Page 18 of 22
Conflict of Laws
Contract of
transportation
or carriage
(render
services)
3.
3.
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
The state can prosecute
crimes began abroad but
completed within its territory
The country of which the
criminal is a citizen or
Lesley Claudio (A 2012)
Nationality or personal
theory
Protective theory
Cosmopolitan or
universality theory
Passive personality or
passive nationality theory
Page 20 of 22
Conflict of Laws
as minor or petty
criminal offenses
committed
Note: Under Art. 27 of UNCLOS, Philippine courts do not
acquire jurisdiction over crimes committed on board a
vessel even if it is within our territorial waters as long as the
effect of such crime does not disturb our peace and order.
This is similar to the French rule.
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 21 of 22
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 22 of 22