CONFLICT OF LAWS

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CONFLICT OF LAWS - 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).

IMPORTANT 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.

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