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Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
AT A GLANCE:
There is no specifically prescribed means to resolve a conflict of laws problem; choice of law varies depending on the circumstances. Courts may employ the “state with the most significant relationship” test in determining choice of law.
Article 15, 16, and 17 of the Civil Code provides that:
Article 15. Laws relating to family rights and duties, or to the status, condition and legal capacity of persons are binding upon citizens of the Philippines, even though living abroad.
Article 16. Real property as well as personal property is subject to the law of the country where it is situated.
However, intestate and testamentary successions, both with respect to the order of succession and to the amount of successional rights and to the intrinsic validity of testamentary provisions, shall be regulated by the national law of the person whose succession is under consideration, whatever may be the nature of the property and regardless of the country wherein said property may be found.
Article 17. The forms and solemnities of contracts, wills, and other public instruments shall be governed by the laws of the country in which they are executed.
When the acts referred to are executed before the diplomatic or consular officials of the Republic of the Philippines in a foreign country, the solemnities established by the Philippine laws shall be observed in their execution.
Prohibitive laws concerning persons, their acts or property, and those which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determinations or conventions agreed upon in a foreign country.
In Vda. de Alcañeses v. Alcañeses et al., the Supreme Court held that choice-of-law problems resolve the following questions:
- What legal system should control a given situation where some of the significant facts occurred in two or more states; and
- To what extent should the chosen legal system regulate the situation?
There is no specifically prescribed means to resolve a conflict of laws problem. Choice of law varies depending on the circumstances.
Several theories have been propounded in order to identify the legal system that should ultimately control. Although ideally, all choice-of-law theories should intrinsically advance both notions of justice and predictability, they do not always do so. The forum is then faced with the problem of deciding which of these two important values should be stressed.
Before a choice can be made, it is necessary for us to determine under what category a certain set of facts or rules fall. This process is known as characterization, or the doctrine of qualification. It is the process of deciding whether or not the facts relate to the kind of question specified in a conflicts rule. The purpose of characterization is to enable the forum to select the proper law.
An essential element of conflict rules is the indication of a “test” or “connecting factor” or “point of contact.” Choice-of-law rules invariably consist of a factual relationship and a connecting factor or point of contact, such as the situs of the res, the place of celebration, the place of performance, or the place of wrongdoing.
Note that one or more circumstances may be present to serve as the possible test for the determination of the applicable law. These “test factors” or “points of contact “ or “connecting factors” could be any of the following:
- The nationality of a person, his/her domicile, his/her residence, his/her place of sojourn, or his/her origin;
- The seat of a legal or juridical person, such as a corporation;
- The situs of a thing, that is, the place where a thing is, or is deemed to be situated. In particular, the lex situs is decisive when real rights are involved;
- The place where an act has been done, the locus actus, such as the place where a contract has been made, marriage celebrated, a will signed or a tort committed. The lex loci actus is particularly important in contracts and torts;
- The place where an act is intended to come into effect, e.g., the place of performance of contractual duties, or the place where a power of attorney is to be exercised;
- The intention of the contracting parties as to the law that should govern their agreement, the lex loci intentionis;
- The place where judicial or administrative proceedings are instituted or done. The lex fori- the law of the forum is particularly important because, as we have seen earlier, matters of “procedure” not going to the substance of the claim involved are governed by it; and because the lex fori applies whenever the content of the otherwise applicable foreign law is excluded from application in a given case for the reason that it falls under one of the exceptions to the applications of foreign law, and
- The flag of a ship, which in many cases is decisive of practically all legal relationships of the ship and of its master or owner as such. It also covers contractual relationships particularly contracts of affreightment.
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Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries regarding legal services, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/ 0917-5772207/ 09778050020.
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