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  Conflict of Laws Comprehensive reviewer of Sempio-Diy book  Chapter 1In GeneralConflict 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 ! T 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# $y municipal law in Conflict of Laws is meant the internal or local law of each state# Conflict of laws vs. public international law Public International LawConflict of lawsAs to persons involved %overns sovereign states and entities that are internationallyrecogni&ed or possessed of international personality %overns private individuals or corporations As to nature 'nternational in character(unicipal in character As to transactions involved Applies only to transactions in which only sovereign states or entities with international personality are concerned and which generally affect public interest Deals with transactions strictly private in nature in which the country as such has generallyno interest As to remedies applied The concerned states may first resort to peaceful remedies# 'f theseremedies fail, the states concerned may resort to forcible remedies )ecourse is had to *udicial or administrative tribunals in accordance with the rules of procedure of the country where they sit Sources of Conflict of Laws 1. Direct sources  Treaties  'nternational conventions  Constitutions  Codifications and statutes  +udicial decisions  'nternational customs 2. 'ndirect sources  !atural moral law  ritings and treaties of thinkers and famous writers Chapter 2urisdiction and choice of law!ow one deals with a problem in Conflict of Laws 1. irst, determine whether the court has *urisdiction over the case#  'f it has no *urisdiction, the case should bedismissed  'f it has *urisdiction, the court will determine whether it should assume  *urisdiction over the case or dismiss it on the ground of forum non conveniens  't is the law of the forum that determines whether the court has *urisdiction over thecase 2. 't will ne.t determine whether to apply the internallaw of the forum or the proper foreign law hree #inds of $urisdiction /#+urisdiction over the sub*ect matter0#+urisdiction over the person 1#+urisdiction over the res urisdiction over the sub$ect matter  Conferred by law  Defined as the power to hear and determine cases of the general class to which the proceedings in 2uestion belong  Cannot be conferred by consent of the parties or by their voluntary submission  (ust be invoked by filing the proper complaint or petition with the court# Note  'n the realm of Conflict of Laws, however, there is another element which the court must consider in determining the matter of *urisdiction   the possible enforceability of its decision in foreign states, sub*ect tothe rights of said states# urisdiction over the person  The competence or power of a court to render a  *udgment that will bind the parties involved  urisdiction over the plaintiff   Ac2uired the moment he invokes the power of the court by instituting the action by the proper pleading  urisdiction over the defendant  Ac2uired whenhe enters his appearance or by the coercive power of legal process e.erted by the court over him   personal or substituted service of summons o %&  'f appearance is for the sole purpose of 2uestioning the *urisdiction of the court# Note  3uestion of erroneous service of summons must be raised before *udgment is rendered, or this would bea case of waiver# Defective service may be cured by actual receipt of summons or if in any other manner, knowledge of the e.istence of the case Lesley Claudio 4A 05/067age 1  of 23  Conflict of Laws Comprehensive reviewer of Sempio-Diy book  urisdiction over the 'es  +urisdiction over the particular sub*ect matter in controversy, regardless of the persons who may beinterested therein  The basis of the e.ercise of this *urisdiction is the presence of the property within the territorial  *urisdiction of the forum even though the court may not have personal *urisdiction over the persons whose interests in the property are affected  The purpose of the suit is not to impose a persona liability on anyone but it is to affect the interests of all persons in a thing# urisdiction in personamurisdiction over the res $inds only the parties and their successors in interest$inds the whole world Actions (uasi in rem  The purpose is neither to impose a personal liabilityin a thing nor to affect the interests of all persons in a thing, but to affect the interests of particular persons in a thing#  An action affecting the personal status of the plaintiff is also classified as an action 2uasi in rem Service of summons) how effected /#'n actions in personam 4/67ersonal service 406Substituted service Note  Service by publication would ! T be sufficient 0#Service by publication 4/6Action in rem 406Action 2uasi in rem 416Action involves the personal status of plaintiff 1#8.traterritorial service of summons 4/6hen the defendant does not reside and is not found in the 7hilippines, and the action affects the personal status of the plaintiff 406hen the defendant does not reside and is not found in the 7hilippines, and the action relates to or the sub*ect of which is,property within the 7hilippines 4real or personal6, in which the defendant has a claim, a lien or interest, actual or contingent 416hen the defendant is a non-resident but the sub*ect of the action is property located in the 7hilippines in which the relief demanded consists in e.cluding the defendant from any interest therein 496hen the property of a non-resident defendant has been attached in the 7hilippines  hile a writ of attachment maybe issued by the court, said writ cannot be implemented until the court has ac2uired  *urisdiction over the non-resident defendant %*traterritorial service) how effected $y leave of court/#$y personal service 0#$y publication, but copy of the summons and the order of the court must be sent by registered mail to the defendant:s last known address 1#'n any other manner that the court may deem sufficient, e#g#, by registered mail Instances when court ma+ refuse to e*ercise  $urisdiction over a case on the basis of forum non conveniens /#The evidence and the witnesses may not be readilyavailable in the forum 0#The court dockets of the forum may already be clogged so that to permit additional cases would hamper the speedy administration of *ustice 1#The belief that the matter can be better tried and decided in another *urisdiction, either because the main aspects of the case transpired there or the material witnesses have their residence there 4. To curb the evils of ;forum shopping<   the non-resident plaintiff might have filed the case in the forum merely to secure procedural advantages or to annoy or harass the defendant 5. The forum has no particular interest in the case   the parties not being citi&ens of the forum or are residents elsewhere, or the sub*ect matter of the case evolved somewhere else =# ther courts are open and the case may be better tried in said courts>#The inade2uacy of the local *udicial machinery for effectuating the right sought to be enforced by the plaintiff ?#The difficulty of ascertaining the foreign law applicable Note  The doctrine should generally apply only if the defendant is a corporation# or if the defendant is an individual, the proper forum may not be able to ac2uire *urisdiction over him, thus leaving the plaintiff without any remedy# hree instances when the forum has to appl+ the internal or domestic law ,le* fori- in decidin a case in conflicts of law /#hen the law of the forum e.pressly so provides inits conflicts rules 0#hen the proper foreign law has not been properlypleaded and proved 1#hen the case involves any of the e.ceptions to the application of the proper foreign law 4i#e# e.ceptions to comity6 /h+ forein law cannot be applied if it has not been pleaded and proved ur courts cannot take *udicial notice of foreign laws !ow a forein law is proved under our 'ules of Court 1./ritten law 4/6An official publication thereof 406A copy of the law attested by the officer having legal custody of the record or by his deputy, accompanied by a certificate of any 7hilippine embassy, consular, or foreign service officer in the foreign Lesley Claudio 4A 05/067age 2  of 23  Conflict of Laws Comprehensive reviewer of Sempio-Diy book country where the record is kept, and authenticated by the seal of his office 2.0nwritten law 4/6The oral testimony of e.pert witnesses 406$y printed and published books of reports of decisions of the country involved if proved to be commonly admitted in its courts Processual presumption of law This rule means that when the proper foreign law has not been properly proved, the court of the forum may presume that said foreign law is the same as its local or domestic law, which it can now apply %*ceptions to the applications of a forein law /#hen the application of the foreign law would run counter to a sound and established public policy of the forum 0#hen the foreign law is contrary to the almost universally conceded principles of morality 4contra bonos mores6 1#hen the foreign law involves procedural matters  %&  hen the law is both procedural and substantive 9#hen the foreign law is penal in character  %&  A penal clause in a contract may however be enforced here because such clause is not criminal in nature but provides only for li2uidated damages @#hen the law is purely fiscal 4i#e#, revenue producing6 or administrative in nature =#hen the foreign law might work undeniable in*ustice to the citi&ens or residents of the forum >#hen the application of the foreign law would endanger the vital interests of the State ?#hen the case involves real or personal property located in our country Chapter  heories that $ustif+ the application of the forein law heories that $ustif+ the application of the forein lawinstead of domestic or internal law /#Theory of comity 0#ested right theory 1#Theory of local law 9#Theory of harmony of laws @#Theory of *ustice heor+ of comit+ According to this theory, no foreign law would be allowed to operate in another state e.cept by the comity of nations Comit+ The recognition which one state allows within its territory, to the legislative, e.ecutive, or *udicial acts of another nation wo principles upon which the theor+ of comit+ rests /#The comity based on reciprocity 0#The comity based on the persuasiveness of a foreign *udgment  ur Civil 7rocedure still follows the principle of reciprocity because in Sec# 9?, )ule 1B, a foreign final  *udgment or order ;is presumptive evidence of a right as between the parties and their successors in interest he vestedrihts theor+ nder this theory, our courts enforce not the foreign law or foreign *udgment but the right or rights that have been vested under such law or *udgment#  )ights once ac2uired should be enforced regardlessof where the suit for its enforcement was filed# heor+ of local law nder this theory, we apply a foreign law not because it is foreign, but because our own law by applying a similar rule re2uires us to do so, hence it is as if the foreign law has become part of our own internal or domestic law# heor+ of harmon+ of laws nder this theory, identical or similar problems should be given identical or similar solutions thus resulting in harmonyof laws heor+ of $ustice Since the purpose of all laws, including Conflict of Laws, is the dispensation of *ustice, the proper foreign law should beapplied in order to attain this ob*ective  The defect of this theory, however, is that different persons may have different ideas of what is *ust !ote !o single theory contains the whole truth no one approach is completely valid# All of the theories have validity# This suggests that they are not entirely e.clusive# Chapter 3Nature and composition of conflicts rulesPurel+ internal provision of law vs. conflicts rulePurel+ internal provision of lawConflicts rule4 A provision in conflict of laws %overns a domestic problem, i#e#, one without a foreign elementA provision found in our ownlaw which governs a factual situation possessed of a foreign element 8.ample Art# >B=   All persons who are not e.pressly prohibited by law may make a will 8.ample Art# /=   )eal property as well as personal property is sub*ect to the law of the country where it issituated wo #inds of conflicts rules 1.5nesided rule  'ndicates when 7hilippine law will apply  8.ample Article /@ of the CC   Laws relating to family rights and duties, or to the status, condition, and legal capacity of persons, are binding upon citi&ens of the 7hilippines even though living abroad 2.Allsided or multilateral rule  'ndicates whether to apply the local law orthe proper foreign law Lesley Claudio 4A 05/067age 3  of 23  Conflict of Laws Comprehensive reviewer of Sempio-Diy book   8.ample Art# /=   )eal property as well as personal property is sub*ect to the law of the country where it is situated Parts of ever+ conflicts rule 1. he factual situation  E the set of facts or situation presenting a conflicts problem because there is a foreign element involved 2. he point of contact or connectin factor  E The law of the country with which the factual situation is most intimately connected Note6 The first part raises while the second part answers a legal 2uestion Chapter 7Characteri8ation of conflict rulesCharacteri8ation therwise known as ;classification< or ;2ualification< is the process of assigning a certain set of facts or factual situation to its proper or correct legal category# $y characteri&ing the legal problem, the court of the parties involved reach the proper solution whether to apply the local law or the proper foreign law  (ost writers hold that on the grounds of practical necessity and convenience, it is the forum or the le. fori that should determine the problem:s characteri&ation unless the result would be a clear in*ustice Note  (odern trend is to consider prescriptive periods or Statute of rauds that the parties had in mind at the time the transaction took place Chapter 9Persona law : heories in determinin one;s personallawPersonal law. That which attaches to him wherever he may go# The law that generally governs his status, capacity, condition, familyrelations, and the conse2uences of his actuations# 't may be/#!ational law 0#Law of his domicile 1#Law of the situs Status vs. capacit+StatusCapacit+ 7lace of an individual in society and consists of personal 2ualities and relationships more or less permanent, with which the state and the community areconcerned nly part of one:s status andmay be defined as the sum total of his rights and obligations wo #inds of capacit+ 1. +uridical capacity  7assive capacity  The fitness to be the sub*ect of legal relations 2. Capacity to act  Active capacity  The power to do acts with legal effects Characteristics of status /#'t is conferred principally by the State, not by the individual 0#'t is a matter of public interest or social interest 1#$eing a concept of social order, it cannot easily be terminated at the mere will or desire of the parties concerned 9#'t is generally supposed to have a universal character <ifferent theories on how the personal law of an individual is determined /#The nationality theory  7ersonal theory  The status and capacity of a person are determined by the law of his nationality orhis national law 0#The domiciliary theory  $y virtue of which the status and capacity of a person is determined by the law of hisdomicile  Territorial theory 1#The situs or eclectic theory  iews the law of a particular place or situsof an event or transaction as generally thecontrolling law Note  The 7hilippines follows the nationality theory# Nationalit+ v. citi8enshipNationalit+Citi8enship )efers to membership in a political community, one thatis personal and more or less permanent, not temporary# A citi&en is one who owes allegiance to and is entitled to the protection of the State'n the field of Conflict of Laws, nationality and citi&enship are the same Chapter = he Nationalit+ heor+<ifferent #inds of citi8enship in the Philippines1.Natural born citi8ens  Those who are citi&ens from birth without having to perform any act to ac2uire or perfect their 7hilippine citi&enship Nativeborn >ilipinos Those born in the 7hilippines# !atural-born citi&ens may not be native-born if they were born abroad 2.Citi8ens b+ naturali8ation Lesley Claudio 4A 05/067age 4  of 23
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