conflict of laws - for printing2

8/14/2019 Conflict of Laws - For Printing2

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Art. 14, 15, 16, 1039, 1183, 1347 at marami paArticle 26 of Family CodeSection 129 of Corporation CodeTreaties - Hague convention, Warsaw, COGSAJurisprudence

International CustomGeneral Principles of lawlex loci celebrationisLEx loci actusLEx rei sitae/lex situslex loci delictuslex loci contractuslex domicilliprinciple of territorialityKilberg doctrine

Indirect sources

foreign jurisprudencejournal of renowned legal writers.

OPTION OF FORUM IN CASE OF COL

1. Refuse - to do so would provide inconvenience to the forum- if the only link is one of the respondent is a Filipino Citizen - MHC vs NLRC- not all cases involving Filipino can be tried in local forum.

2. Assume jurisdiction - exercise of Sovereign Prerogative, if the court has jurisdiction ofover the:

a. resb. Subject matterc. person

- court has discretion to proceed on the case.

REQUISITE OF ASSUMPTION of JURISDICTION

1. The Philippine court is one to which the parties may conveniently resolve;

2. That the Philippine court is in the position to make an intelligent decision as to the lawsand facts3. The Philippine court has likely to have the power to enforce the decision - MHC vs.NLRC

COURT MAY APPLY1. Local law - aznar vs. GARcia2. Foreign law - Bellis vs BEllis

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3. Apply both - Cadalin vs .POEACHOICE OF LAW

-depends on the factual situation - different case, different application of law.- there is no hard rule in the application of law.

- Foreign law has no extra-territorial effect- General Rule

there is an exception

1. JUSTIFICATION OF APPLICATION OF LOCAL LAWSa. matter involving procedural law - apply law of the forum -based on lex forib. if foreign law is contrary to public policy of the forumc. If application of foreign law or local law which give rights to the foreigner would

result injustice to our national - salvacion vs BCPd. When court accept the renvoir - aznar vs garciae. when most of the factual situation referes to phil jurisdiction- saudia vs morada.

JUSTIFICATION OF APPLYING FOREIGN LAWS1. When cause of action arises in foreign land.2. If local law so provides - article 16, Bellis vs Bellis - lex domicilli3. Principle of Comity

Note - Foreign law should be pleaded and proved , if not , presumed to be the same withthe local law - DOCTRINE OF PROCESSUAL PRESUMPTION

4. If There Is A Treaty - Warsaw, Santos Vs Northwest Orient Airline

DISTINGUISHED FROM PUBLIC INTERNATIONAL LAW

BASIS CONFLICT OF LAW LAW OF NATIONS

1 Nature Municipal in character International in character

2 Personsinvolved

Dealt with by privateindividuals; governsindividuals in their privatetransactions which involve aforeign element

Sovereign states and otherentities possessinginternational personality, e.g.,UN; governs states in theirrelationships amongstthemselves

3 Transactions

involved

Private transactions between

private individuals

Generally affected by public

interest; those in general areof interest only to sovereignstates

4 RemediesandSanctions

Resort to municipal tribunals May be peaceful or forciblePeaceful: includes diplomaticnegotiation, tender & exerciseof good offices, mediation,inquiry & conciliation,arbitration, judicial settlementby ICJ, reference to regional

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agenciesForcible: includes severanceof diplomatic relations,retorsions, reprisals,embargo, boycott, non-

intercourse, pacificblockades, collectivemeasures under the UNCharter, and war.

TERMS:

LEXDOMICILII - law of the domicile; in conflicts, the law of one's domicile applied in the choiceof law questions

LEX FORI - law of the forum; that is, the positive law of the state, country or jurisdiction of

whose judicial system of the court where the suit is brought or remedy is sought is anintegral 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)

LEXLOCI- law of the place

LEXLOCICONTRACTUS - the law of the place where the contract was made or law of the placewhere the contract is to be governed (place of performance) which may or may not be thesame as that of the place where it was made

LEXLOCIREISITAE - law of the place where the thing or subject matter is situated; the title torealty or question of real estate law can be affected only by the law of the place where it issituated

LEX SITUS - law of the place where property is situated; the general rule is that lands andother immovables are governed by the law of the state where they are situated

LEXLOCIACTUS - law of the place where the act was done

LEXLOCICELEBRATIONIS - law of the place where the contract is made

LEX LOCI SOLUTIONIS - law of the place of solution; the law of the place where payment orperformance of a contract is to be made

LEXLOCIDELICTICOMMISSI - law of the place where the crime took place

LEXMEREATORIA - law merchant; commercial law; that system of laws which is adopted by alcommercial nations and constitute as part of the law of the land; part of common law

LEXNONSCRIPTA - the unwritten common law, which includes general and particular customsand particular local laws

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LEXPATRIAE - national law

RENVOI DOCTRINE - doctrine whereby a jural matter is presented which the conflict of lawsrules of the forum refer to a foreign law which in turn, refers the matter back to the law ofthe forum or a third state. When reference is made back to the law of the forum, this is said

to be "remission" while reference to a third state is called "transmission."

NATIONALITY THEORY-by virtue of which the status and capacity of an individual are generallygoverned by the law of his nationality. This is principally adopted in the RP

DOMICILIARY THEORY - in general, the status, condition, rights, obligations, & capacity of aperson should be governed by the law of his domicile.

LONG ARM STATUTES - Statutes allowing the courts to exercise jurisdiction when there areminimum contacts between the non-resident defendant and the forum.

WAYS OF DEALING WITH A CONFLICTS PROBLEM:

1. Dismiss the case for lack of jurisdiction, or on the ground of forum non-conveniens

DOCTRINE OF FORUM NON CONVENIENS- the forum is inconvenient; the ends ofjustice would be best served by trial in another forum; the controversy may be moresuitably tried elsewhere

2. Assume jurisdiction and apply either the law of the forum or of another state

a. APPLY INTERNAL LAW - forum law should be applied whenever there is good

reason to do so; there is a good reason when any one of the following factors ispresent:

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

Examples: Article. 16 of the Civil Code - real and personal property subject to thelaw of the country where they are situated and testamentary successiongoverned by lex nationalii Article 829 of the Civil Code - makes revocation done outsidePhilippines valid according to law of the place where will was made or lex

domicilii Article 819 of the Civil Code - prohibits Filipinos from making joint willseven if valid in foreign country

ii. The proper foreign law was not properly pleaded and proved

NOTICE AND PROOF OF FOREIGN LAW

As a general rule, courts do not take judicial notice of foreign lawsForeign laws must be pleaded and proved

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Effect of failure to plead and prove foreign law (3 alternatives) of theforum court:

(a) Dismiss the case for inability to establish cause of action(b) Assume that the foreign law of the same as the law of the forum(c) Apply the law of the forum

iii. The case falls under any of the exceptions to the application of foreignlaw

Exceptions to application of foreign law:(a) The foreign law is contrary to the public policy of the forum(b) The foreign law is procedural in nature(c) The case involves issues related to property, real or personal (lexsitus)(d) The issue involved in the enforcement of foreign claim is fiscal oadministrative

(e) The foreign law or judgment is contrary to good morals (contra bonosmores)(f) The foreign law is penal in character(g) When application of the foreign law may work undeniable injustice tothe citizens of the forum(h) When application of the foreign law might endanger the vital interest othe state

b. APPLY FOREIGN LAW - when properly pleaded and proved

THEORIES WHY FOREIGN LAW SHOULD BE GIVEN EFFECT

1. Theory of Comity foreign law is applied because of its convenience & because wewant to giveprotection to our citizens, residents, & transients in our land2. Theory of Vested Rights we seek to enforce not foreign law itself but the rights that

have been vested under such foreign law; an act done in another state may give rise tothe existence of a right if the laws of that state crated such right.

3. Theory of Local Law- adherents of this school of thought believe that we apply foreignlaw not because it is foreign, but because our laws, by applying similar rules, require usto do so; hence, it is as if the foreign law has become part & parcel of our local law

4. Theory of Harmony of Laws theorists here insist that in many cases we have toapply the foreign laws so that wherever a case is decided, that is, irrespective of theforum, the solution should be approximately the same; thus, identical or similar solutions

anywhere & everywhere. When the goal is realized, there will be harmony of laws5. Theory of Justice the purpose of all laws, including Conflict of Laws, is thedispensing of justice; if this can be attained in may cases applying the proper foreignlaw, we must do so

RULESON STATUSIN GENERAL

FACTUAL SITUATION POINT OF CONTACT

1 Beginning of personality of naturalperson

National law of the child (Article 15,CC)

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nationality of husband at the timeof wedding)

2 Property relations bet husband &wife

National law of husband withoutprejudice to what the CC providesconcerning REAL property located in

the RP (Article 80) (NOTE: Changeof nationality has NO EFFECT. Thisis the DOCTRINE OFIMMUTABILITY IN THEMATRIMONIAL PROPERTYREGIME)

RULESON PROPERTY


REAL PROPERTY Lex rei sitae (Article 16, CC)

Except

ions Successional rights National law of decedent (Article 16

par. 2, CC)

Capacity to succeed National law of decedent (Article.1039)

Contracts involving real propertywhich do not deal with the titlethereto

The law intended will be the properlaw of the contract (lex locivoluntantis orlex loci intentionis)

Contracts where the real property isgiven as security

The principal contract (usually loan)is governed by the proper law oft the

contract (lex loci voluntatis or lexloci intentionis)NOTE: the mortgage itself isgoverned by lex rei sitae. There is apossibility that the principal contractis valid but the mortgage is void; or itmay be the other way around. If theprincipal contract is void, themortgage will also be void (for lack ofproper cause or consideration),although by itself, the mortgage

could have been valid.TANGIBLE PERSONAL PROPERTY (CHOSES IN POSSESSION)

1 IN GENERAL Lex rei sitae (Article. 16, CC)

Exceptions: same as those for realproperty

EXCEPTION: same as those for realproperty EXCEPT that in theexample concerning mortgage, thesame must be changed to pledge ofpersonal property)

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2 MEANSOF TRANSPORTATION

Vessels Law of the flag (or in some cases,place of registry)

Other means Law of the depot (storage place for supplies or resting place)

3 THINGS IN TRANSITU (THESE THINGS HAVE ACHANGINGSTATUSBECAUSETHEYMOVE)

Loss, destruction, deterioration Law of the destination (Article. 1753,CC)

Validity & effect of the seizure of thegoods

Locus regit actum (where seized) because said place is their temporarysitus

Disposition or alienage of the goods Lex loci volutantis or lex lociintentionis because here there is acontract


INTANGIBLE PERSONAL PROPERTY(CHOSES IN ACTION)

1 Recovery of debts or involuntaryassignment of debts (garnishment)

Where debtor may be effectivelyserved with summons (usually thedomicile)

2 Voluntary assignment of debts Lex loci voluntatis or lex loci

intentionis (proper law of thecontract)

OTHER THEORIES:a. National law of the debtor or creditorb. Domicile of the debtor or creditorc. Lex loci celebrationisd. Lex loci solutionis

3 Taxation of debts Domicile of creditor

4 Administration of debts Lex situs of assets of the debtor (forthese assets can be held liable for

the debts)5 Negotiability or non-negotiability of

an instrumentThe right embodied in the instrument(for example, in the case of aSwedish bill of exchange, Swedishlaw determines its negotiability)

6 Validity of transfer, delivery or negotiation of the instrument

In general, situs of the instrument atthe time of transfer, delivery ornegotiation

7 Effect on a corporation of the sale ofcorporate shares

Law of the place incorporation

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8 Effect between the parties of the saleof corporate shares

Lex loci voluntatis or lex lociintentionis (proper law of thecontract) for this is really acontract; usually this is the placewhere the certificate is delivered)

9 Taxation on the dividends of corporate shares Law of the place of incorporation

10 Taxation on the income from the saleof corporate shares

Law of the place where the sale wasconsummated

11 Franchises Law of the place that granted them

12 Goodwill of the business & taxationthereto

Law of the place where the businessis carried on

13 Patents, copyrights, trademarks,trade names

In the absence of a treaty, they areprotected only by the state thatgranted themNOTE: foreigners may sue for

infringement of trademarks and tradenames in the RP ONLY IF Filipinosare granted reciprocal concessions inthe state of the foreigners

Wills, Succession & Administration of Conflict Rules


EXTRINSIC VALIDITYOF WILLS

1 Made by an alien abroad Lex nationaliiOR lex domiciliiOR RPlaw (Article 816, CC), OR lex locicelebrationis (Article 17(1))

2 Made by a Filipino abroad Lex nationalii OR lex loci celebrationis (Article 815)

3 Made by an alien in the RP Lex nationalii OR lex loci celebrationis (Article 817)


EXTRINSIC VALIDITYOF JOINT WILLS (MADEINTHESAMEINSTRUMENT)

1 Made by Filipinos abroad Lex nationalii (void, even if validwhere made) (Article 819)

2 Made by aliens abroad Valid if valid according to lex domiciliiorlex loci celebrationis (Article 819)

3 Made by aliens in the RP Lex loci celebrationis therefore voideven if apparently allowed by Article817 because the prohibition on jointwills is a clear expression of publicpolicy

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INTRINSIC VALIDITYOF WILLS Lex nationalii of the deceased regardless of the LOCATION &NATURE of the property (Article 16(2))

CAPACITYTO SUCCEED Lex nationaliiof the deceased not

of the heir (Article 1039)REVOCATIONOF WILLS

1 If done in the RP Lex loci actus (of the revocation)(Article. 829)

2 If done OUTSIDE the RP

a. By a NON-DOMICILIARY Lex loci celebrationis (of the makingof the will, NOT revocation), OR lexdomicilii(Article 829)

b. By a DOMICILIARY of the RP Lex domicilii (RP law) OR lex loci

actus (of the revocation) (Article 17)PROBATEOF WILLS MADE ABROAD

1 If not yet probated abroad Lex fori of the RP applies as to theprocedural aspects, i.e., the will mustbe fully probated here & dueexecution must be shown

2 If already probated abroad Lex foriof the RP again applies as tothe procedural aspects; must also beprobated here, but instead of provingdue execution, generally it is enoughto ask for the enforcement here of

the foreign judgment on the probateabroad

EXECUTORSAND ADMINISTRATORS

1 Where appointed Place where domiciled at death or incase of non-domiciliary, whereassets are found

2 Powers Co-extensive with the qualifying of the appointing court powers mayonly be exercised within the territorial

jurisdiction of the court concernedNOTE: these rules also apply to

principal, domiciliary, or ancillaryadministrators & receivers even innon-successive cases

RULESON OBLIGATIONAND CONTRACTS


FORMALOR EXTRINSIC VALIDITY Lex loci celebrationis (Article 17 {1})

Exceptions

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a. Alienation & encumbrance ofproperty

Lex situs (Article 16 [1])

b. Consular contracts Law of the RP (if made in RPconsulates)

CAPACITYOF CONTRACTING PARTIES National law (Article 15) withoutprejudice to the case of InsularGovernment v Frank 13 P 236,where the SC adhered to the theoryoflex loci celebrationis

Exception

Alienation & encumbrance ofproperty

Lex situs (Article 16 {1})

INTRINSIC VALIDITY (INCLUDING INTERPRETATIONOFTHE INSTRUMENTS, AND AMT. OF DAMAGES FOR

BREACH)

Proper law of the contract lexcontractus (in the broad sense),

meaning the lex voluntatis orlex lociintentionis

OTHER THEORIESARE:a. Lex loci celebrationis (defect: this makes possible the evasion of thenational law)b. Lex nationalii(defect: this may impede commercial transactions)c. Lex loci solutionis (law of the place of performance) (defect: there may beseveral places of performanced. Prof Minors solution:

i. Perfection lex loci celebrationisii. Cause or consideration lex loci considerationsiii. Performance lex loci solutionis (defect: this theory combines the

defect of the others)

RULESON TORTS


Liability & damages for torts in general

NOTE: The locus delicti (place ofcommission of torts) is faced by the

problem of characterization. In civil lawcountries, the locus delicti is generallywhere the act began; in common lawcountries, it is where the act firstbecame effective

Lex loci delicti (law of the place wherethe delict was committed)

NOTE: liability for foreign torts may be

enforced in the RP if:a. The tort is not penal in characterb. If the enforcement of the tortiousliability wont contravene our publicpolicyc. If our judicial machinery isadequate for such enforcement

RULESON CRIMES


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ESSENTIALELEMENTSOFACRIMEANDPENALTIES Generally where committed (locusregit actum)

THEORIESASTOWHATCOURTHASJURISDICTION:a. Territoriality theory where the crime was committedb. Nationality theory country which the criminal is citizen or a subject

c. Real theory any state whose penal code has been violated hasjurisdiction, where the crime was committed inside or outside its territoryd. Protective theory any state whose national interests may be jeopardizedhas jurisdiction so that it may protect itselfe. Cosmopolitan or universality theory state where the criminal is found orwhich has his custody has jurisdictionf. Passive personality theory the state of which the victim is a citizen orsubject has jurisdiction

NOTE: In the RP, we follow the territoriality theory in general; exception: Article2, RPC, stresses the protective theory

THELOCUSDELICTIOFCERTAINCRIMES1 Frustrated an consummated,homicide, murder, infanticide &parricide

Where the victim was injured (notwhere the aggressor wielded hisweapon)

2 Attempted homicide, etc. Where the intended victim was (notwhere the aggressor was situated) so long as the weapon or the bulleteither touched him or fell inside theterritory where he was

3 Bigamy Where the illegal marriage wasperformed

4 Theft & robbery Where the property was unlawfullytaken from the victim (not the place towhich the criminal went after thecommission of the crime)

5 Estafa or swindling thru falserepresentation

Where the object of the crime wasreceived (not where the falserepresentations were made)

6 Conspiracy to commit treason,rebellion, or seditionNOTE: Other conspiracies are NOTpenalized by our laws

Where the conspiracy was formed(not where the overt act of treason,rebellion or sedition was committed)

7 Libel Where published or circulated8 Continuing crime Any place where the offense begins,

exists or continues

9 Complex crime Any place where any of the essentialelements of the crime took place

Rules on Juridical Persons


CORPORATIONS

Powers and liabilities General rule: the law of the place of

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incorporationEXCEPTIONS:

a. For constitutional purposes even of the corporation wasincorporated in the RP, it is nor

deemed a Filipino corporation &therefore cant acquire land,exploit our natural resources, 7operate public utilities unless60% of capital if Filipino ownedb. For wartime purposes wepierce the corporation veil & go tothe nationality of the controllingstockholders to determine if thecorporation is an enemy(CONTROL TEST)

Formation of the corporation(requisites); kind of stocks, transferof stocks to bind the corporation,issuance, amount & legality &dividends, powers & duties ofmembers, stockholders and officers

Law of the place of incorporation

Validity of corporate acts & contracts(including ultra vires acts)

Law of the place of incorporation &law of the place of performance (theact or contract must be authorizedby BOTH laws)

Right to sue & amenability to court

processes & suits against it

Lex fori

Manner & effect of dissolution Law of the place of incorporationprovided that the public policy of theforum is not militated against

Domicile If not fixed by the law creating or recognizing the corporation or byany other provision the domicile iswhere it is legal representation isestablished or where it exercises itsprincipal functions (Article. 15)

Receivers (appointment & powers) Principal receiver is appointed by the

courts of the state of incorporation;ancillary receivers, by the courts ofany state where the corporation hasassets (authority is CO-EXTENSIVE)w/ the authority of the appointingcourt

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NOTE: Theories on the personal and/or governing law of corporations:a. Law of the place of incorporation (this is generally the RP rule)b. Law of the place or center of management (center for administration or

siege social) (center office principle)c. Law of the place of exploitation (exploitation centre orsiege d exploitation)

PARTNERSHIPSThe existence or non-existence oflegal personality of the firm; thecapacity to contract; liability of thefirm & the partners to 3rd persons

The personal law of the partnership,i.e., the law of the place where it wascreated (Article 15 of the Code ofCommerce) (Subject to theexceptions given above as in thecase of corps.)

Creation of branches in the RP;validity & effect of the branchescommercial transaction; & the

jurisdiction of the court

RP law (law of the place wherebranches were created) (Article 15,Code of Commerce)

Dissolution, winding up, &termination of branches in the RP

RP law (Article 15, Code of Commerce)

Domicile If not fixed by the law creating or recognizing the partnership or byany other provision the domicile iswhere it is legal representation isestablished or where it exercises itsprincipal functions (Article. 15)

Receivers RP law insofar as the assets in theRP are concerned can be exercisedas such only in the RP

FOUNDATIONS (COMBINATION OF CAPITALINDEPENDENT OF INDIVIDUALS, USUALLY NOT FORPROFIT)

Personal law of the foundation(place of principal center ofadministration)

1. CASES

1. CADALIN VS POEA - 12-5-94 - court of forum will not enforce any foreign claimobnoxious to the public policy of the forum.-- foreign procedural law is inapplicable in the forum. Procedural matter aregoverned by the law of the forum even if the action is based on foreign law.

2. HSBC VS SHERMAN - an agreement to sue and be sued is a specific court doesnot preclude the filing of suit in the residence of plaintiff or defendant - renuncio nonprasunitur

3. SALVACION VS BVP - When the local law gives protection to the foreigner withprejudice against a national, , interpretation should be in favor of the national.

4. LAUREL VS GARCIA - lex situs is applicable only in a dispute over the title of animmovable such that capacity to take and transfer, or the interpretation and effect ofconveyance and the essential validity of transfer not when the issue is tether

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authority of the government to sue the immovable is in question.

5. AZNAR VS GARCIA - Renvoi - when the nationality of the deceased (foreigner)states that the law of the domicile (Phil) should govern, then the successional rights

of the heir is govern by the Phil law.

6. SAUDI ARABIAN AIRLINE VS CA 10-8-98 - when the factual situation of the casehas significant relation to the place of the forum, and the defendant is a foreigncorporation engaged in doing in business in the Phil and the plaintiff is a residenttherein, the court can acquire jurisdiction over the case.

8. PAKISTAN VS OPLE - if respondent did not present evidence of foreign law, it ispresumed that the foreign law is the same as the law of the forum.- stipulation of the parties does not deprive the forum of its jurisdiction

REBUS SiC INSTANTIBUS - opposite of pacta sunt servanda - justify the nonperformance of the treaty - requires political act

9. BANCO DE BRAZIL VS CA 6-16-00 - an action for damages iis an action inpersonam.

- summon by publication or service of summon to the ambassador of Brazil does notacquire jurisdiction to the petitioner.

non-resident corporation - cannot acquire jurisdiction in personal action

10. MHC vs NLRC 10-13-00 - if the only link it has with the case is that therespondent is a Filipino Resident, case cannot be tried.

- if case involve purely foreign element - court ca refuse to assume jurisdiction -forum non conviniens

Court can assume if the ff requirements are present1. Phil court is one the which the parties may conveniently resolve;2. The Phil court is in the position to make an intelligent decision as to the law

and fact.3. The Phil court has likely to enforce the decision.

OTHER CASES2. Phil aluminium vs RTC of Pasig - 10-12-00 GRN 1373783. Nagarmull vs binalbagan GRN L-22478, 5-28/784. NW Orient airline vs Ca - GRN 112573, 2-9-955. Perkins vs Dizon6. Boudard vs Tait7. Perkins vs Benguet Consolidated Mining8. Philsec vs Ca

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9. Inghenoil vs Walter and olsen GRN 22288 1-12-2510.Asiavest vs CA 110263 7-20-01

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conflict of laws - for printing2

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