Pink Notes in Conflicts (1)

8/13/2019 Pink Notes in Conflicts (1)

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PINK NOTES:Rinchels guide to pass your law subjects

CONFLICTS OF LAS

Con!licts o! law - Part of international law which deals with legal problemsinvolving foreign element concerning the conflict in the application of local andforeign laws, raised in a proper forum.

That part of 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/s (Paras).

"le#ents

I. egal problem involving foreign element!

--If there is no foreign element, there is no conflict of law.

"oreign elements is a factual situation that cut across territorial lines and affectedby diverse laws of two or more states -- #audia vs $orada

%. &ne or both litigant is alien

'. ause of action arises in foreign state

- location of the res- place of celebration- place of the act- place of the crime

II. ssumption of the proper forumases involving &, forum may*

%. +efuse - apply forum non conviniens, no &'. ssume- forum may apply the following*

a. local law -- le forib. "oreign law - le causaec -- apply both -- adalin vs P&

III. onflict between local and foreign law- if there is no conflict between the two, there is nothing to resolve.- court can apply foreign law if properly pleaded and proved, applicationdiscretionary to the court.

I. hoice of law to be applied-hich law applies0 - depends on the factual situation and connection of

the foreign element, apply characteri1ation process of determining under whatcategory a certain set of facts or rules falls.

- Purpose - to enable the forum to select the proper law.

SO$RC"S o! COL2irect sources


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rt. %3, %4, %5, %678, %%97, %73: at marami particle '5 of "amily ode#ection %'8 of orporation odeTreaties - ;ague convention, arsaw, &


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%. ocal law - a1nar vs.


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of interest only to sovereignstates

3 +emediesand#anctions

+esort to municipal tribunals $ay be peaceful or forciblePeaceful* includes diplomaticnegotiation, tender F eercise

of good offices, mediation,inGuiry F conciliation,arbitration, ?udicial settlementby I=, reference to regionalagencies"orcible* includes severanceof diplomatic relations,retorsions, reprisals,embargo, boycott, non-intercourse, pacificbloc@ades, collective

measures under the DAharter, and war.

T"R&S.

LEXDOMICILII- law of the domicileB in conflicts, the law of oneHs domicile appliedin the choice of law Guestions

LEX FORI- law of the forumB that is, the positive law of the state, country or?urisdiction of whose ?udicial system of the court where the suit is brought orremedy is sought is an integral part. #ubstantive rights are determined by the lawwhere 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 lawof the place where the contract is to be governed (place of performance) whichmay or may not be the same as that of the place where it was made

LEX LOCI REI SITAE - law of the place where the thing or sub?ect matter issituatedB the title to realty or Guestion of real estate law can be affected only bythe law of the place where it is situated

LEXSITUS- law of the place where property is situatedB the general rule is that

lands and other immovables are governed by the law of the state where they aresituated

LEXLOCIACTUS - law of the place where the act was done

LEXLOCICELEBRATIONIS- law of the place where the contract is made

LEXLOCISOLUTIONIS- law of the place of solutionB the law of the place wherepayment or performance of a contract is to be made

LEXLOCIDELICTICOMMISSI- law of the place where the crime too@ place


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LEXMEREATORIA- law merchantB commercial lawB that system of laws which isadopted by all commercial nations and constitute as part of the law of the landBpart of common law

LEX NON SCRIPTA - the unwritten common law, which includes general andparticular customs and particular local laws

LEXPATRIAE - national law

R"N/OI )OCTRIN" - doctrine whereby a ?ural matter is presented which theconflict of laws rules of the forum refer to a foreign law which in turn, refers thematter bac@ to the law of the forum or a third state. hen reference is made bac@to the law of the forum, this is said to be remission while reference to a thirdstate is called transmission.

NATIONALIT*T+"OR*-by virtue of which the status and capacity of an individualare generally governed by the law of his nationality. This is principally adopted inthe +P

)O&ICILIAR* T+"OR* - in general, the status, condition, rights, obligations, Fcapacity of a person should be governed by the law of his domicile.

LON,AR&STAT$T"S- #tatutes allowing the courts to eercise ?urisdiction whenthere are minimum contacts between the non-resident defendant and the forum.

A*S OF )"ALIN, IT+ A CONFLICTS %RO-L"&.

%. 2ismiss the case for lac@ of ?urisdiction, or on the ground of forum non-conveniens

)OCTRIN" OF FOR$& NON CONVENIENS- the forum is inconvenientB the

ends of ?ustice would be best served by trial in another forumB the controversymay be more suitably tried elsewhere

'. ssume ?urisdiction and apply either the law of the forum or of another state

a. A%%L* INT"RNAL LA- forum law should be applied whenever there isgood reason to do soB there is a good reason when any one of thefollowing factors is present*

i0 A speci!ic law o! the !oru# decrees that internal law shouldapply

Examples:

rticle. %5 of the ivil ode - real and personal property sub?ect to

the law of the country where they are situated and testamentarysuccession governed by lex nationalii

rticle 9'8 of the ivil ode - ma@es revocation done outside

Philippines valid according to law of the place where will was madeor lex domicilii

rticle 9%8 of the ivil ode - prohibits "ilipinos from ma@ing ?oint

wills even if valid in foreign country


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ii0 The proper !oreign law was not properly pleaded and pro1ed

NOTICE AND PROOF OF FOREIGN LA

s a general rule, courts do not ta@e ?udicial notice of foreign lawsB

"oreign laws must be pleaded and proved

ffect of failure to plead and prove foreign law (7 alternatives) ofthe forum court*(a) 2ismiss the case for inability to establish cause of action(b) ssume that the foreign law of the same as the law of the forum(c) pply the law of the forum

iii0 The case !alls under any o! the e2ceptions to the application o!!oreign law

Exceptions to application of forei!n la":(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 (lesitus)

(d) The issue involved in the enforcement of foreign claim is fiscal oradministrative

(e) The foreign law or ?udgment is contrary to good morals (contra#onos mores)

(f) The foreign law is penal in character(g) hen application of the foreign law may wor@ undeniable in?ustice

to the citi1ens of the forum(h) hen application of the foreign law might endanger the vital

interest of the state

b. A%%L* FOR"I,N LA 3 when properly pleaded and proved

T+"ORI"S +* FOR"I,N LA S+O$L) -" ,I/"N "FF"CT

%. Theory o! Co#ity J foreign law is applied because of its con$enience Fbecause we want to giveprotection to our citi1ens, residents, F transients inour land

'. Theory o! /ested RightsJ we see@ to enforce not foreign law itself but therights that have been vested under such foreign lawB an act done in anotherstate may give rise to the eistence of a right if the laws of that state cratedsuch right.

7. Theory o! Local Law- adherents of this school of thought believe that weapply foreign law not because it is foreign, but because our laws, by applyingsimilar rules, reGuire us to do soB hence, it is as if the foreign law has becomepart F parcel of our local law

3. Theory o! +ar#ony o! LawsJ theorists here insist that in many cases wehave to apply the foreign laws so that wherever a case is decided, that is,irrespective of the forum, the solution should be approimately the sameB


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thus, identical or similar solutions anywhere F everywhere. hen the goal isreali1ed, there will be Kharmony of lawsL

4. Theory o! (usticeJ the purpose of all laws, including onflict of aws, is thedispensing of ?usticeB if this can be attained in may cases applying the properforeign law, we must do so

R$L"SONSTAT$SIN,"N"RAL

"TD #ITDTI&A P&IAT &" &ATT

% Ceginning of personality of naturalperson

Aational law of the child (rticle %4,)

' ays F effects of emancipation #ame

7 ge of ma?ority #ame

3 Dse of names and surnames #ame

4 Dse of titles of nobility #ame

5 bsence #ame

: Presumptive death F survivorship Lex fori (rticle 37, 786, 78%, B

+ule %7% M4 N??O, +ules of ourt)R$L"SON&ARRIA,"ASACONTRACT


(elebrated)broadCetween "ilipinos Lex loci cele#rationis is without

pre?udice to the eceptions underrticles '4, 74 (%, 3, 4 F 5), 75, 7: F79 of the "amily ode (bigamous Fincestuous marriages) F consularmarriages

Cetween "oreigners Lex loci cele#rationisE%CEPT if themarriage is*

a. ;ighly immoral (li@e bigamous/polygamous marriages)b. Dniversally considered

incestuous (between brother-sister, and ascendants-descendants)

$ied pply % (b) to uphold validity ofmarriage

(elebra

tedin+PCetween "oreigners Aational law (rticle '%, ")

P+&I22 the marriage is nothighly immoral or universally

considered incestuous)$ied Aational law of "ilipino (otherwise

public policy may be militatedagainst)

$arriage by proy (NOTE* amarriage by proy is consideredcelebrated where the proy appears

Lex loci cele#rationis(with pre?udiceto the foregoing rules)


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CONFLICTS OF LAS

R$L"SON&ARRIA,"ASASTAT$S


% Personal rights F obligationsbetween husband F wife

Aational of husband(Note:ffect of subseGuent changeof nationality*

a. If both will have a new nationalityJ the new oneb. If only one will change J the last

common nationalityc. If no common nationality J

nationality of husband at the timeof wedding)

' Property relations bet husband Fwife

Aational law of husband withoutpre?udice to what the providesconcerning + property located inthe +P (rticle 96) (NOTE* hange

of nationality has A& ""T. Thisis the )OCTRIN" OFI&&$TA-ILIT* IN T+"&ATRI&ONIAL %RO%"RT*R",I&"4


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R$L"SON%RO%"RT*


+ P+&P+TE Lex rei sitae(rticle %5, )

Exce

ptions #uccessional rights Aational law of decedent (rticle %5

par. ', )

apacity to succeed Aational law of decedent (rticle.%678)

ontracts involving real propertywhich do not deal with the titlethereto

The law intended will be the properlaw of the contract (lex loci$ol&ntantis or lex loci intentionis)

ontracts where the real property isgiven as security

The principal contract (usually loan)is governed by the proper law oft thecontract J (lex loci $ol&ntatis or lex

loci intentionis)NOTE* the mortgage itself isgoverned by lex rei sitae. There is apossibility that the principal contractis valid but the mortgage is voidB or itmay be the other way around. If theprincipal contract is void, themortgage will also be void (for lac@ ofproper cause or consideration),although by itself, the mortgagecould have been valid.

TA


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CONFLICTS OF LAS

oss, destruction, deterioration aw of the destination (rticle. %:47,)

alidity F effect of the sei1ure of thegoods

Loc&s re!it act&m (where sei1ed) Jbecause said place is theirtemporary sit&s

2isposition or alienage of the goods Lex loci $ol&tantis or lex lociintentionisJ because here there is acontract


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IATA


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P+&CT&"I#$2C+&2

% If not yet probated abroad Lex foriof the +P applies as to theprocedural aspects, i)e), the will mustbe fully probated here F dueeecution must be shown

' If already probated abroad Lex foriof the +P again applies as tothe procedural aspectsB must also beprobated here, but instead of provingdue eecution, generally it is enoughto as@ for the enforcement here ofthe foreign ?udgment on the probateabroad

DT&+#A22$IAI#T+T&+#

% here appointed Place where domiciled at death orincase of non-domiciliary, whereassets are found

' Powers o-etensive with the Gualifying ofthe appointing court J powers mayonly be eercised within the territorial

?urisdiction of the court concernedNOTE* these rules also apply toprincipal, domiciliary, or ancillaryadministrators F receivers even innon-successive cases

R$L"SONO-LI,ATIONAN)CONTRACTS


"&+$&+T+IA#II2ITE Lex loci cele#rationis (rticle %: Q%R)Exceptions

a. lienation F encumbrance ofproperty

e situs (rticle %5 N%O)

b. onsular contracts aw of the +P (if made in +Pconsulates)

PITE&"&AT+TIA


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IAT+IA#I I2ITE (IAD2IA


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T;&+I##T&;T&D+T;#=D+I#2ITI&A*a. Territoriality theory J where the crime was committedb. Aationality theory J country which the criminal is citi1en or a sub?ectc. +eal theory J any state whose penal code has been violated has ?urisdiction,

where the crime was committed inside or outside its territory

d. Protective theory J any state whose national interests may be ?eopardi1edhas ?urisdiction so that it may protect itselfe. osmopolitan or universality theory J state where the criminal is found or

which has his custody has ?urisdictionf. Passive personality theory J the state of which the victim is a citi1en or

sub?ect has ?urisdiction

NOTE: In the +P, we follow the territoriality theory in generalB eception* rticle', +P, stresses the protective theory

T;LOC('DELICTI&"+TIA+I$#

% "rustrated an consummated,

homicide, murder, infanticide Fparricide

here the victim was in?ured (not

where the aggressor wielded hisweapon)

' ttempted homicide, etc. here the intended victim was (notwhere the aggressor was situated) Jso long as the weapon or the bulleteither touched him or fell inside theterritory where he was

7 Cigamy here the illegal marriage wasperformed

3 Theft F robbery here the property was unlawfullyta@en from the victim (not the place to

which the criminal went after thecommission of the crime)

4 stafa or swindling thru falserepresentation

here the ob?ect of the crime wasreceived (not where the falserepresentations were made)

5 onspiracy to commit treason,rebellion, or seditionNOTE:&ther conspiracies are A&Tpenali1ed by our laws

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

: ibel here published or circulated

9 ontinuing crime ny place where the offense begins,

eists or continues8 omple crime ny place where any of the essential

elements of the crime too@ place

Rules on (uridical %ersons


&+P&+TI&A#

Powers and liabilities


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incorporationE%CEPTION'*a. "or constitutional purposes J

even of the corporation wasincorporated in the +P, it is nor

deemed a "ilipino corporation Ftherefore canSt acGuire land,eploit our natural resources, :operate public utilities unless56 of capital if "ilipino owned

b. "or wartime purposes J wepierce the corporation veil F go tothe nationality of the controllingstoc@holders to determine if thecorporation is an enemy(&AT+& T#T)

"ormation of the corporation(reGuisites)B @ind of stoc@s, transferof stoc@s to bind the corporation,issuance, amount F legality Fdividends, powers F duties ofmembers, stoc@holders and officers

aw of the place of incorporation

alidity of corporate acts F contracts(including &ltra $iresacts)

aw of the place of incorporation Flaw of the place of performance (theact or contract must be authori1edby C&T; laws)

+ight to sue F amenability to court

processes F suits against it

Lex fori

$anner F effect of dissolution aw of the place of incorporationprovided that the public policy of theforum is not militated against

2omicile If not fied by the law creating orrecogni1ing the corporation or byany other provision J the domicile iswhere it is legal representation isestablished or where it eercises itsprincipal functions (rticle. %4)

+eceivers (appointment F powers) Principal receiver is appointed by the

courts of the state of incorporationBancillary receivers, by the courts ofany state where the corporation hasassets (authority is &-TA#I)w/ the authority of the appointingcourt


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

siege social) (center office principle)c. aw of the place of eploitation (exploitation centreor sie!e d exploitation)

P+TA+#;IP#The eistence or non-eistence oflegal personality of the firmB thecapacity to contractB liability of thefirm F the partners to 7rdpersons

The personal law of the partnership,i.e., the law of the place where it wascreated (rticle %4 of the ode ofommerce) (#ub?ect to theeceptions given above as in thecase of corps.)

reation of branches in the +PBvalidity F effect of the branchesScommercial transactionB F the

?urisdiction of the court

+P law (law of the place wherebranches were created) (rticle %4,ode of ommerce)

2issolution, winding up, Ftermination of branches in the +P

+P law (rticle %4, ode ofommerce)

2omicile If not fied by the law creating orrecogni1ing the partnership or byany other provision J the domicile iswhere it is legal representation isestablished or where it eercises itsprincipal functions (rticle. %4)

+eceivers +P law insofar as the assets in the+P are concerned can be eercisedas such only in the +P

"&DA2TI&A# (&$CIATI&A &" PITIA2PA2AT&"IA2II2D#, D#DEA&T"&+P+&"IT)

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

%. CAS"S

%. 2IA # P& - %'-4-83 - court of forum will not enforce anyforeign claim obnoious to the public policy of the forum.-- foreign procedural law is inapplicable in the forum. Procedural matterare governed by the law of the forum even if the action is based on foreignlaw.

'. ;#C # #;+$A - an agreement to sue and be sued is a specificcourt does not preclude the filing of suit in the residence of plaintiff ordefendant - renuncio non prasunitur

7. #I&A # CP - hen the local law gives protection to theforeigner with pre?udice against a national, , interpretation should be infavor of the national.


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3. D+ #


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OT+"R CAS"S'. Phil aluminium vs +T of Pasig - %6-%'-66

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Pink Notes in Conflicts (1)