Conflicts of law - Part of international law which deals with legal problems involving foreign element concerning the

conflict in the application of local and foreign 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). Elements I. Legal problem involving foreign element--If there is no foreign element, there is no conflict of law. Foreign elements is a factual situation that cut across territorial lines and affected by diverse laws of two or more states -- Saudia vs Morada 1. One or both litigant is alien 2. Cause of action arises in foreign state - location of the res - place of celebration - place of the act - place of the crime II. Assumption of the proper forum Cases involving COL, forum may: 1. Refuse - apply forum non conviniens, no COL 2. Assume- forum may apply the following: a. local law -- lex fori b. Foreign law - lex causae c -- apply both -- Cadalin vs POEA III. Conflict 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, application discretionary to the court. IV. Choice of law to be applied -Which law applies? - depends on the factual situation and connection of the foreign element, apply characterization process of determining under what category a certain set of facts or rules falls. - Purpose - to enable the forum to select the proper law. SOURCES of COL Direct sources Art. 14, 15, 16, 1039, 1183, 1347 at etc. Article 26 of Family Code Section 129 of Corporation Code Treaties - Hague convention, Warsaw, COGSA Jurisprudence International Custom General Principles of law lex loci celebrationis LEx loci actus LEx rei sitae/lex situs

lex loci delictus lex loci contractus lex domicilli principle of territoriality Kilberg doctrine Indirect sources foreign jurisprudence journal 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 of over the: a. res b. Subject matter c. 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 laws and facts 3. The Philippine court has likely to have the power to enforce the decision - MHC vs. NLRC COURT MAY APPLY 1. Local law - aznar vs. GARcia 2. Foreign law - Bellis vs BEllis 3. Apply both - Cadalin vs .POEA CHOICE 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 LAWS a. matter involving procedural law - apply law of the forum -based on lex fori b. if foreign law is contrary to public policy of the forum c. If application of foreign law or local law which give rights to the foreigner would result injustice to our national - salvacion vs BCP d. When court accept the renvoir - aznar vs garcia e. when most of the factual situation referes to phil jurisdiction- saudia vs morada. JUSTIFICATION OF APPLYING FOREIGN LAWS

1. When cause of action arises in foreign land. 2. If local law so provides - article 16, Bellis vs Bellis - lex domicilli 3. Principle of Comity Note - Foreign law should be pleaded and proved , if not , presumed to be the same with the local law - DOCTRINE OF PROCESSUAL PRESUMPTION 4. If There Is A Treaty - Warsaw, Santos Vs Northwest Orient Airline TERMS: LEX DOMICILII - law of the domicile; in conflicts, the law of one's domicile applied in the choice of 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 an integral 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) LEX LOCI - law of the place LEX LOCI CONTRACTUS - 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 may 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 subject matter is situated; the title to realty or question of real estate law can be affected only by the law of the place where it is situated LEX SITUS - law of the place where property is situated; the general rule is that lands and other immovables are governed by the law of the state where they are situated LEX LOCI ACTUS - law of the place where the act was done LEX LOCI CELEBRATIONIS - 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 or performance of a contract is to be made LEX LOCI DELICTI COMMISSI - law of the place where the crime took place LEX MEREATORIA - law merchant; commercial law; that system of laws which is adopted by all commercial nations and constitute as part of the law of the land; part of common law LEX NON SCRIPTA - the unwritten common law, which includes general and particular customs and particular local laws LEX PATRIAE - national law RENVOI DOCTRINE - doctrine whereby a jural matter is presented which the conflict of laws rules of the forum refer to a foreign law which in turn, refers the matter back to the law of the 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 generally governed by the law of his nationality. This is principally adopted in the RP DOMICILIARY THEORY - in general, the status, condition, rights, obligations, & capacity of a person should be governed by the law of his domicile.

LONG ARM STATUTES - Statutes allowing the courts to exercise jurisdiction when there are minimum 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 of justice would be best served by trial in another forum; the controversy may be more suitably 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 is present: 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 the law of the country where they are situated and testamentary succession governed by lex nationalii Article 829 of the Civil Code - makes revocation done outside Philippines 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 wills even 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 laws; Foreign laws must be pleaded and proved Effect of failure to plead and prove foreign law (3 alternatives) of the forum 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 foreign law 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 (lex situs) (d) The issue involved in the enforcement of foreign claim is fiscal or administrative (e) The foreign law or judgment is contrary to good morals (contra bonos mores) (f) The foreign law is penal in character

(g) When application of the foreign law may work undeniable injustice to the citizens of the forum (h) When application of the foreign law might endanger the vital interest of the 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 we want to give protection to our citizens, residents, & transients in our land 2. 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 to the 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 foreign law not because it is foreign, but because our laws, by applying similar rules, require us to 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 to apply the foreign laws so that wherever a case is decided, that is, irrespective of the forum, the solution should be approximately the same; thus, identical or similar solutions anywhere & everywhere. When the goal is realized, there will be harmony of laws 5. Theory of Justice the purpose of all laws, including Conflict of Laws, is the dispensing of justice; if this can be attained in may cases applying the proper foreign law, we must do so
1. CASES

1. CADALIN VS POEA - 12-5-94 - court of forum will not enforce any foreign claim obnoxious to the public policy of the forum. -- foreign procedural law is inapplicable in the forum. Procedural matter are governed 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 does not preclude the filing of suit in the residence of plaintiff or defendant - renuncio non prasunitur 3. SALVACION VS BVP - When the local law gives protection to the foreigner with prejudice 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 an immovable such that capacity to take and transfer, or the interpretation and effect of conveyance and the essential validity of transfer not when the issue is tether 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 case has significant relation to the place of the forum, and the defendant is a foreign corporation engaged in doing in business in the Phil and the plaintiff is a resident therein, the court can acquire jurisdiction over the case. 8. PAKISTAN VS OPLE - if respondent did not present evidence of foreign law, it is presumed 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 non performance of the treaty - requires political act 9. BANCO DE BRAZIL VS CA 6-16-00 - an action for damages iis an action in personam. - summon by publication or service of summon to the ambassador of Brazil does not acquire 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 the respondent 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 present 1. 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 CASES 2. Phil aluminium vs RTC of Pasig - 10-12-00 GRN 137378 3. Nagarmull vs binalbagan GRN L-22478, 5-28/78 4. NW Orient airline vs Ca - GRN 112573, 2-9-95 5. Perkins vs Dizon 6. Boudard vs Tait 7. Perkins vs Benguet Consolidated Mining 8. Philsec vs Ca 9. Inghenoil vs Walter and olsen GRN 22288 1-12-25 10.Asiavest vs CA 110263 7-20-01