Transcript
CONFLICTS OF LAWS; DEFINITION: 1. That part of the law law of each each state or nation which determines determines whether whether,, in dealing dealing with with a legal situation, the law or some other state or nation will be recognized, given effect, or applied (16 Am Jur, d, !onflict of "aws, #1$. . That That part part of munici municipa pall law of a state state which which direc directs ts its courts courts and adminis administra trativ tive e agencies, when confronted with a legal problem involving a foreign element, whether or not the% should appl% a foreign law&s ('aras$. DISTINGUISHED FROM PUBLIC INTERNATIONAL LAW A)*) ature 'ersons involved
!+-"*!T +- "A /unicipal in character 0ealt with b% private individuals governs individuals in their private transactions which involve a foreign element
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Transac sactio tions involved
'rivate transactions between private individuals
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emedies and )anctions
eso esort rt to muni munici cipa pall tri tribu buna nals ls
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"A +- AT*+) *nternational in character )overeign states and other entities possessing international personalit%, e.g., 2 governs states in their relationships amongst themselves 4enerall% affected b% public interest those in general are of interest onl% to sovereign states /a% /a% be be peac peacef eful ul or forc forcib ible le 'eaceful: includes diplomatic negotiation, tender 7 e8ercise of good offices, mediation, in9uir% 7 conciliation, arbitration, udicial settlement settlement b% *!J, reference to regional agencies -orcible: includes severance of diplomatic relations, retorsions, reprisals, embargo, bo%cott, non;intercourse, pacific bloc
. Judi Judici cial al 0eci 0ecisi sion ons s 6. *nter *nterna natio tiona nall !usto !ustoms ms *0*=!T: 1. atural moral law . or< or< of write riters rs TERMS: ; LEX D D OMICILII ;
law of the domicile in conflicts, the law of one?s domicile applied in the choice of law 9uestions
LEX F F ORI ; ORI ;
law of the forum that is, the positive law of the state, countr% or urisdiction of whose udicial s%stem of the court where the suit is brought or remed% is sought is an integral part. )ubstantive rights are determined b% the law where the action arose ( lex loci $ while the procedural rights are governed b% the law of the place of the forum ( lex fori $ LEX L LOCI ; ;
law of the place
LEX L OCI C ONTRACTUS ;
the law of the place where the contract was made or law of the place where the contract is to be governed (place of performance$ which ma% or ma% not be the same as that of the place where it was made LEX L OCI R EI S ITAE ;
law of the place where the thing or subect matter is situated the title to realt% or 9uestion of real estate law can be affected onl% b% the law of the place where it is situated LEX S ITUS ;
law of the place where propert% is situated the general rule is that lands and other immovables are governed b% the law of the state where the% are situated LEX LOCI ACTUS
; law of the place where the act was done
LEX LOCI C ELEBRATIONIS ;
law of the place where the contract is made
LEX L OCI S OLUTIONIS ;
law of the place of solution the law of the place where pa%ment or performance of a contract is to be made LEX LOCI DELICTI C OMMISSI ;
law of the place where the crime too< place
LEX M EREATORIA ;
law merchant commercial law that s%stem of laws which is adopted b% all commercial nations and constitute as part of the law of the land part of common law LEX N ON S CRIPTA ;
the unwritten common law, which includes general and particular customs and particular local laws LEX P ATRIAE
; national law
RENVOI DOCTRINE ; doctrine whereb% a ural matter is presented which the conflict of laws rules of the forum refer to a foreign law which in turn, refers the matter 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 third state is called @transmission.@ NATIONALITY THEORY - b% virtue of which the status and capacit% of an individual are generall% governed b% the law of his nationalit%. This is principall% adopted in the ' DOMICILIARY T HEORY ; in general, the status, condition, rights, obligations, 7 capacit% of a person should be governed b% the law of his domicile. LONG ARM STATUTES ; )tatutes allowing the courts to e8ercise urisdiction when there are minimum contacts between the non;resident defendant and the forum. WAYS OF DEALING WITH A CONFLICTS PROBLEM: 1. 0ismiss the case for lac< of urisdiction, or on the ground of forum non;conveniens DOCTRINE OF FORUM NON CONVENIENS ; the forum is inconvenient the ends of ustice would be best served b% trial in another forum the controvers% ma% be more suitabl% tried elsewhere . Assume urisdiction and appl% 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 an% one of the following factors is present: i.
A specific !" #f $%e f#&'( )ec&ees $%!$ i*$e&*! !" s%#') !pp+
Examples: Article. 16 of the !ivil !ode ; real and personal propert% subect to the law of the countr% where the% are situated and testamentar% succession governed b% lex nationalii Article B of the !ivil !ode ; ma. T%e#&+ #f 0's$ice C the purpose of all laws, including !onflict of "aws, is the dispensing of ustice if this can be attained in ma% cases appl%ing the proper foreign law, we must do so RULES ON STATUS 1 3 5 > 6 F
IN GENERAL
-A!T2A" )*T2AT*+ eginning of personalit% of natural person a%s 7 effects of emancipation Age of maorit% 2se of names and surnames 2se of titles of nobilit% Absence 'resumptive death 7 survivorship
'+*T +- !+TA!T ational law of the child (Article 1>, !!$ )ame )ame )ame )ame )ame Lex fori (Article 53, 3BG, 3B1, !! ule 131 #> HI, ules of !ourt$
RULES ON MARRIAGE AS A CONTRACT -A!T2A" )*T2AT*+ d a etween -ilipinos o r b A d e t a r b e etween l e !
-oreigners
/i8ed ' etween -oreigners 6 n i d e t a r b /i8ed e l e !
/arriage b% pro8% (NOTE : a marriage b% pro8% is considered celebrated where the pro8% appears RULES ON MARRIAGE AS A STATUS -A!T2A" )*T2AT*+ 1 'ersonal rights 7 obligations between husband 7 wife
'ropert% relations bet husband 7 wife
'+*T +- !+TA!T Lex loci cele#rationis is without preudice to the e8ceptions under Articles >, 3> (1, 5, > 7 6$, 36, 3F 7 3 of the -amil% !ode (bigamous 7 incestuous marriages$ 7 consular marriages Lex loci cele#rationis E%CEPT if the marriage is: a. ighl% immoral (li3, !!$ Loc&s re!it act&m (where seized$ C because said place is their temporar% sit&s Lex loci $ol&tantis or lex loci intentionis C because here there is a contract
-A!T2A" )*T2AT*+ *TA4*"= '=)+A" '+'=TL (!+)=) * A!T*+$ 1 ecover% of debts or involuntar% assignment of debts (garnishment$ Koluntar% assignment of debts
'+*T +- !+TA!T
here debtor ma% be effectivel% served with summons (usuall% the domicile$ Lex loci $ol&ntatis or lex loci intentionis (proper law of the contract$
+T= T=+*=): a. ational law of the debtor or creditor b. 0omicile of the debtor or creditor c) Lex loci cele#rationis d) Lex loci sol&tionis 3 Ta8ation of debts 0omicile of creditor 5 Administration of debts Lex sit&s of assets of the debtor (for these assets can be held liable for the debts$ > egotiabilit% or non;negotiabilit% of an The right embodied in the instrument (for instrument e8ample, in the case of a )wedish bill of e8change, )wedish law determines its negotiabilit%$ 6 Kalidit% of transfer, deliver% or *n general, situs of the instrument at the negotiation of the instrument time of transfer, deliver% or negotiation F =ffect on a corporation of the sale of "aw of the place incorporation corporate shares =ffect between the parties of the sale of "e8 loci voluntatis or le8 loci intentionis corporate shares (proper law of the contract$ C for this is reall% a contract usuall% this is the place where the certificate is delivered$ B Ta8ation on the dividends of corporate "aw of the place of incorporation shares 1G Ta8ation on the income from the sale of "aw of the place where the sale was corporate shares consummated 11 -ranchises "aw of the place that granted them 1 4oodwill of the business 7 ta8ation "aw of the place where the business is thereto carried on 13 'atents, cop%rights, trademar$ 3 /ade b% an alien in the ' Lex nationalii + lex loci cele#rationis (Article 1F$
-A!T2A" )*T2AT*+ =MT*)*! K A"*0*TL +- J+*T *"") (/A0= * T= )A/= *)T2/=T$ 1 /ade b% -ilipinos abroad
/ade b% aliens abroad
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/ade b% aliens in the '
*T*)*! K A"*0*TL +- *"")
! A'A!*TL T+ )2!!==0 =K+!AT*+ +- *"") 1 *f done in the '
Lex loci act&s (of the revocation$ (Article. B$
a. % a +;0+/*!*"*AL
Lex loci cele#rationis (of the ma$ without preudice to the case of *nsular 4overnment v -ran< 13 ' 36, where the )! adhered to the theor% of lex loci cele#rationis
! A'A!*TL +- !+TA!T*4 ' AT*=)
Exception Alienation 7 encumbrance of propert% *T*)*! KA"*0*TL (*!"20*4 *T='=TAT*+ +- T= *)T2/=T), A0 A/T. +- 0A/A4=) -+ =A!$
Lex sit&s (Article 16 N1O$ 'roper law of the contract C lex contract&s (in the broad sense$, meaning the lex $ol&ntatis or lex loci intentionis
+T= T=+*=) A=: a. Lex loci cele#rationis (defect: this ma =stafa or swindling thru false here the obect of the crime was representation received (not where the false representations were made$ 6 !onspirac% to commit treason, rebellion, here the conspirac% was formed (not or sedition where the overt act of treason, rebellion NOTE: +ther conspiracies are +T or sedition was committed$ penalized b% our laws F "ibel here published or circulated !ontinuing crime An% place where the offense begins, e8ists or continues B !omple8 crime An% place where an% of the essential elements of the crime too< place R'es #* 0'&i)ic! Pe&s#*s -A!T2A" )*T2AT*+ !+'+AT*+) 'owers and liabilities
'+*T +- !+TA!T 4eneral rule: the law of the place of incorporation E%CEPTION': a. -or constitutional purposes C even of the corporation was incorporated in the ', it is nor deemed a -ilipino corporation 7 therefore canPt ac9uire land, e8ploit our natural resources, F operate public utilities unless 6GQ of capital if -ilipino owned b. -or wartime purposes C we pierce the corporation veil 7 go to the nationalit% of the controlling stoc$ eceivers (appointment 7 powers$ 'rincipal receiver is appointed b% the courts of the state of incorporation ancillar% receivers, b% the courts of an% state where the corporation has assets (authorit% is !+;=MT=)*K=$ w& the authorit% of the appointing court NOTE: Theories on the personal and&or governing law of corporations: a. "aw of the place of incorporation (this is generall% the ' 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 e8ploitation ( exploitation centre or sie!e d exploitation$ ' AT=)*') The e8istence or non;e8istence of legal The personal law of the partnership, i.e., personalit% of the firm the capacit% to the law of the place where it was contract liabilit% of the firm 7 the created (Article 1> of the !ode of rd partners to 3 persons !ommerce$ ()ubect to the e8ceptions given above as in the case of corps.$ !reation of branches in the ' validit% ' law (law of the place where 7 effect of the branchesP commercial branches were created$ (Article 1>, transaction 7 the urisdiction of the !ode of !ommerce$ court 0issolution, winding up, 7 termination of ' law (Article 1>, !ode of !ommerce$ branches in the ' 0omicile *f not fi8ed b% the law creating or recognizing the partnership or b% an% other provision C the domicile is where it is legal representation is established or where it e8ercises its principal functions (Article. 1>$ eceivers ' law insofar as the assets in the ' are concerned can be e8ercised as such onl% in the ' -+20AT*+) (!+/*AT*+ +- !A'*TA" 'ersonal law of the foundation (place of *0='=0=T +- *0*K*02A"), 2)2A""L +T principal center of administration$ -+ '+-*T$
