CONFLICT OF LAWS Atty. Eduardo R.

Robles
Cupin | Gan | Gerona | Gonzales 3A | 2015
Introductory Concepts
A contrariety or opposition in the laws of states or countries in cases where the rights of
the parties, from their relations to each other or to the subject-matter in dispute, are
liable to be affected by the laws of both jurisdictions
It also includes the deciding which law is in such cases to have superiority
It also includes many cases where there is no opposition between two systems of law,
but where the question is how much force may be allowed to a foreign law with
reference to which an act has been done, either directly or by legal implication, in the
absence of any domestic law exclusively applicable to the case
Wharton Contracts: Obligations, in respect to the mode of their solemnization, are
subject to the rule Locus Regit Actum; in respect to their interpretation, to the Lex Loci
Contractus; in respect to the mode of their performance, to the law of the place of their
performance. But the Lex Fori determines when and how such laws, when foreign, are
to be adopted, and in all cases not specified above, supplies the applicatory law.
Matters bearing upon the execution, the interpretation, and the validity of a contract
are determined by the law of the place where the contract is made. Matters connected
with its performance are regulated by the law prevailing at the place of performance.
Matters respecting the remedy, such as the bringing of suits, admissibility of evidence,
statutes of limitations, depend upon the law of the place where the suit is brought.
(See Scudder v. Bank, 23 L. Ed. 245)
The criterion by which to ascertain whether a particular inquiry relates to the substance
of the contract or remedy merely is said to be: suppose the legislature of the Locus
Contractus to enact the law of the forum, making it applicable to the existing contract. If
the result is that the obligation of the contract is either increased or impared thereby,
then the point to which the law of the forum relates is part of the obligation or
substance of the contract and is not merely a matter of remedy, and the Lex Loci, not
the Lex Fori, should control. If, on the other hand, the result is that the obligation of the
contract is not at all affected, being neither increased nor diminished, then the inquiry
relates to a matter of remedy only, and the Lex Fori should govern. (16 Harv. L. Rev.
262)

Leading Canons
1. The laws of every state affect and bind directly all property, real or personal, situated
within its territory; all contracts made and acts done and all persons resident within its
jurisdiction, and are supreme within its own limits by virtue of its sovereignty
2. Possessing exclusive authority, with the above qualification, a state may regulate the
manner and circumstances under which property, whether real or personal, in
possession or in action, within it, shall be held, transmitted, or transferred by sale,
barter, or bequest, or recovered or enforced; the condition, capacity, and state of all
persons within it; the validity of contracts and other acts done there; the resulting rights
and duties growing out of these contracts and acts; and the remedies and modes of
administering justice in all cases
3. Whatever force and obligation the laws of one country have in another depends upon
the laws and municipal regulations of the latter; that is to say, upon its own proper
jurisprudence and polity, and upon its own express or tacit consent
4. The power of determining whether, or how for, or with what modification, or upon what
conditions, the laws of one state or any rights dependent upon them shall be recognized
in another, is a legislative one. The comity involved is a comity of the states, and not of
CONFLICT OF LAWS Atty. Eduardo R. Robles
Cupin | Gan | Gerona | Gonzales 3A | 2015
the courts, and the judiciary must be guided in deciding the question by the principle
and policy adopted by the legislature.
5. When a statute or the unwritten or common law of the country forbids the recognition
of the foreign law, the latter is of no force whatever. When both are silent, then the
question arises, which of the conflicting laws is to have effect. Each sovereignty must
determine for itself whether it will enforce a foreign law. It is a principle universally
recognized that the revenue laws of one country have no force in another. The statutes
of one state giving a right of action to enforce a penalty have no force in another.
6. Rights of action arising under foreign bankrupt, insolvent, or assignment laws are no
recognized by a state when prejudicial to the interests of its own citizens. A remedy
special to a particular foreign state is not, by any principle of comity, enforceable
elsewhere.
7. Generally, force and effect will be given by any state to foreign laws in cases where for
the transactions of the parties, they are applicable, unless they affect injuriously her
own citizens, violate her express enactments, or are contra bonos mores.
8. In general, the mode of conveying, encumbering, transmitting, devising, and controlling
real estate is governed by the law of the place of situation of the property. Perhaps an
exception may exist in the case of mortgages. It is said that the law governing the
mortgage, as such, is the law of situs of the land which the mortgage covers; but the
debt is governed by the law of domicil of the party to whom it is due, no matter where
the property be situated; and that when the money is invested on the land for which the
mortgage is given, the lex sitae prevails. For purposes of taxation, a debt has its situs at
the domicil of the creditor.
9. Bills of exchange and promissory notes are to be governed, as to validity and
interpretation, by the law of the place of making, as are other contracts. The residence
of the drawee of a bill of exchange, and the place of making a promissory note where
no other place of payment is specified, is the locus contractus. As between the drawee
and drawer and other parties [but not between an indorser and indorsee] each
indorsement is considered a new contract. A statute of limitations of a foreign state
providing that an action on a note shall be brought within a certain time after the cause
of action accrues bars the debt itself if not brought within the time limited, and may be
pleaded in bar of an action brought on the note in another state. Place of payment
governs as to all matters connected with payment.
10. The better rule as to the rate of interest to be allowed on bills of exchange and
promissory notes, where no place of payment is specified and no rate of interest
mentioned, seems to be the rate of the lex loci. The damages recoverable on a bill of
exchange not paid are those of the place where the plaintiff is entitled to
reimbursement. Where a place of payment is specified, the interest of that place must
be allowed, except that where a contract is made in one state, to be performed in
another, parties may contract for the legal rate of interest allowable in either state,
provided such contract is entered into in good faith, and not merely to avoid the usury
laws of the latter state, if it is valid in that respect in the state where it was made.
11. Chattel mortgages valid and duly registered under the laws of the state in which the
property is situated at the time of the mortgage, will be held valid in another state to
which the property is removed, although the regulations there are different, and it will
be enforced in the state to which the property has been removed, although it would
have bee invalid if made in that state. [BUT it is said by Wharton that the law in regard
to chattel mortgages is governed by the lex rei sitae; that a lien is extinguished when
CONFLICT OF LAWS Atty. Eduardo R. Robles
Cupin | Gan | Gerona | Gonzales 3A | 2015
goods are taken from the place where the lien was created to a place where such a lien
is not recognized.] The lex fori determines the remedies on mortgage.
12. The registration of chattel mortgages and transfer of stocks are frequently made
subjects of positive law. Where the mortgagor of chattels removes with them to another
state, the mortgagee, to preserve his rights, need not again record the mortgage in such
other state. As to whether such mortgages will be respected in preference to claims of
citizens of state into which property is removed, it is held that they will.
13. Questions of priority of liens and other claims are, in general, to be determined by the
lex rei sitae even in regard to personal property. The existence of the lien will generally
depend on the lex loci.
14. In an action brought in one state for injuries done in another, the statutes and decisions
of the courts of the latter state must fix the liability.
15. Executors and administrators, in the absence of a specific statute authorizing it, have to
power to sue or be sued, by virtue of a foreign appointment as such. Guardians have no
power over the property, whether real or personal, of their wards, by virtue of a foreign
appointment. They must have the sanction of the appropriate local tribunal.
16. Judgments and decrees of foreign courts relating to immovable property within their
jurisdiction are held binding everywhere. And the rule is the same with regard to
movables actually within their jurisdiction. Admiralty proceedings in rem are held
conclusive founded on actual possession of the subject matter.
17. Voluntary assignments of personal property, valid where made, will transfer property
everywhere [but not as against citizens of the state of the situs attaching prior to the
assignees obtaining possession]. An involuntary assignment by operation of law as
under bankrupt or insolvent laws will not avail as against attaching creditors in the place
of situation of the property. [It may be a question whether the same rule would hold if
the assignees had obtained possession. An assignment by operation of law is good so as
to vest property in the assignees by comity.]
18. Discharges by the lex loci contractus are valid everywhere.
In England, it is settled that an assignment under the bankrupt law of a foreign
country possess all the personal property of the bankrupt locally situated, and
debts owing in England, and that an attachment of such property by an English
creditor, after such bankruptcy, with or without notice to him, is involved to
overreach the assignment.
In the USA, this rule is restricted by the clause in the Constitution forbidding the
passage of any law impairing the obligation of contracts. Under this provision, it
is held that a state insolvent or bankrupt law may not have any extra-territorial
effect to discharge the debtor.

READ:
Ruhe v Buck, 27 S.W. 412
Atwood v Walker, 61 N.E. 58
Mutual Life Ins. Co. v Hill, 48 L. Ed. 788
Lewisohn v Steamship Co., 56 Fed. 602
Dimpfel v Wilson, 68 Atl. 561
Lanham v Lanham, 17 N.W. 787
Pennegar v State, 10 S.W. 305
Johnson v Johnson, 106 Pac. 500
State v Fenn, 92 Pac. 417
CONFLICT OF LAWS Atty. Eduardo R. Robles
Cupin | Gan | Gerona | Gonzales 3A | 2015
Garcia v Garcia, 127 N.W. 586
Commonwealth v Lane, 18 Am. Rep. 509

Maxims
[NON EX REGULA JUS SUMATUR, SED EX JURE QUOD EST REGULA FIAT.]
There should be no departure from common observance or usage.
From justice, as a fountain, all rights flow.
Things captured by pirates or robbers do not change their ownership.
A simple proposition needs no expositor.
Abundant caution does no harm.
To accept anything as a reward for doing justice is rather extorting than accepting.
Equity does not make law, but assists law.
Doubtful words will be construed most strongly against the party using them.
The intention of the party is the soul of the instrument.
Legal principles must not be carried to their extreme consequences, regardless of equity
and good sense.
The application is the life of a rule.
Things acquired in war go to the state.
A thing good from necessity is not good beyond the limits of the necessity.
A custom, though it be of great authority, should never, however, be prejudicial to
manifest truth.
Every one ought to be subject to the law of the place where he offends.
Debts follow the person of the debtor.
The power, which is derived cannot be greater than that from which it is derived.
One who exercises jurisdiction out of his territory cannot be obeyed with impunity.
The hurrying of justice is the stepmother of misfortune.
Where truth is, fiction of law does not exist.
In contracts, the interpretation or construction should be liberal; in wills, more liberal; in
restitutions, most liberal.
Penal actions arising from anything of a criminal nature, do not pass to heirs.
The most unjust peace is to be preferred to the justest war.
The law would rather tolerate a private loss than a public evil.
The text of a statute should never be read in a sense more comprehensive than the
rubric, or title.
Those things, which agree in substance, though not in the same words, do not differ.
Every rule of law is liable to its own exceptions.
Usage is the best interpreter of things.
It is dangerous to introduce new and unaccustomed things.
Things, which are tolerated on account of necessity ought not to be drawn into
precedent.
He who is prior in time is stronger in right.
Whenever the same words express two meanings that is to be taken which is better
fitted for carrying out the proposed end.
Reason may be alleged when the law is defective, but it must be true and legal reason,
and not merely apparent.
We must have recourse to what is extraordinary when what is ordinary fails.
Things done between strangers ought not to injure those who are no parties to them.
CONFLICT OF LAWS Atty. Eduardo R. Robles
Cupin | Gan | Gerona | Gonzales 3A | 2015
The value of a thing is estimated by its worth in money, and the value of money is not
estimated by reference to things.
If you can be relieved by accustomed remedies, new ones should not be tried.
Statutes are confined to their own territory, and have no extra-territorial effect.
Interpretation is always to be made in such a manner that what is absurd and
inconvenient is to be avoided, and so that the judgment be not nugatory.

Notes:
The theory is that conflict of laws rests on a general principle of territoriality that
comes from public international law that is that states have the right to regulate the
activities and persons within their territories and, conversely, have no right to regulate
conduct or persons beyond their borders.
Comity is deference to foreign law in an attempt to promote international harmony by
accommodating the views of a foreign sovereign in the expectation of receiving
reciprocal treatment.
The theory of vested rights says that foreign law is never applied as such; Instead,
local law simply recognized a right that had become vested in an individual under the
foreign law at a time when the individual was subject to the foreign law. The theory
emphasized the individuals entitlement to his or her vested right rather than the courts
politeness or concession to foreign sovereigns.
The local law theory says that since conflict of laws was a branch of the local
municipal law, that law alone determined what, if any, relevance and operation would
attach to foreign law. Under this theory, no right was vested in individuals by the
operation of any foreign law alone. Instead, the right became operational only after it
was recognized and given effect by the local law, and the local law alone determined
when that would happen.
The forum, when confronted by a case involving foreign elements, always applies its
own law to the case, but in doing so adopts and enforces as its own law a rule of
decision identical, or at least highly similar though not identical, in scope with a rule of
decision found in the system of law in force in another state or country with which some
or all of the foreign elements are connected, the rule so selected being in many groups
of cases the rule of decision which the given foreign state or country would apply, not to
this very group of facts now before the court of the forum, but to a similar but purely
domestic group of facts involving for the foreign court no foreign element.

Methods
1. Normally, even in cases involving foreign elements, the courts should be expected, as a
matter of course, to apply the rule of decision found in the law of the forum;
2. When it is suggested that the law of the foreign state should furnish the rule of decision,
the court should, first of all, determine the governmental policy expressed in the law of
the forum. It should then inquire whether the relation of the forum to the case is such
as to provide a legitimate basis for the assertion of an interest in the application of that
policy.
3. If necessary, the court should similarly determine the policy expressed by the foreign
law, and whether the foreign state has an interest in the application of its policy.
4. If the court finds that the forum state has no interest in the application of its policy, but
that the foreign state has, it should apply the foreign law.
CONFLICT OF LAWS Atty. Eduardo R. Robles
Cupin | Gan | Gerona | Gonzales 3A | 2015
5. If the court finds that the forum state has an interest in the application of its policy, it
should apply the law of the forum, even though the foreign state also has an interest in
the application of its contrary policy, and, a fortiori, it should apply the law of the forum
if the foreign state has no such interest.

Every legal system reserves an ultimate discretion to exclude the application of the
foreign lex causea normally applicable under its choice-of-law principles if the result is
offensive to forum public policy. The operation of this exception is not restricted to the
choice-of-law level; public policy also provides a defense to the enforcement of foreign
decisions and judgments that would otherwise be entitled to recognition.
Claims and judgments based on foreign sovereign or public rights are also vulnerable
to exclusion. This is well established (if not always well regarded) in the case of foreign
tax and penal laws.
The penal, revenue, public law, and public policy defenses to the recognition of a foreign
judgment are distinct from the nature justice defense. The natural justice defense is
concerned with the fairness of the procedure by which the foreign judgment was
obtained whereas the other defenses rest on the substantive character of the foreign
laws on which that judgment was based. Nonetheless, like other defenses, the nature
justice defense requires a fundamental deviation from forum natural justice values; it is
insufficient to show simply that the forum and the foreign procedures diverge.
Common law considers crimes as altogether local, and cognizable and punishable
exclusively in the country where they are committed. No other nation, therefore, has
any right to punish them; or is under any obligation to take notice of, or enforce any
judgment, rendered in such cases by the tribunal having authority to hold jurisdiction
within the territory, where they are committed.
The limits of domestic criminal jurisdiction (and choice of law) are set by the principle of
territorial sovereignty: a state has jurisdiction to apply its penal laws only over crimes
that occur within its own territorial limits and, conversely, has no jurisdiction over crimes
that occur outside its borders.
The penal exception is limited to denying a foreign sovereign the power to enforce its
criminal laws outside the territory of their enactment. It does not preclude forum
recognition of the relevant law in other contexts. Another important qualification on the
penal exception arises in cases where an extradition treaty has been concluded with the
foreign country. [Note: it is commonly made a condition of extradition that the foreign
crime for which extradition is sought also constitute a crime in the eyes of the lex
fori.][Note: extradition is usually also prohibited where the person whose extradition is
sought has already been tried for the same offense in the territory of the requested
state, but not apparently in the requesting state.]
Courts will not entertain an action brought by an individual which will indirectly have the
effect of enforcing the revenue laws of a foreign country.
Enforcement of a claim for taxes is but an extrusion of the sovereign power which
imposed the taxes, and that an assertion of sovereign authority by one state within the
territory of another as distinct from a patrimonial claim by a foreign sovereign, is (treaty
or convention apart) contrary to all concepts of independent sovereignties.
A foreign law confiscating or expropriating title to private property in favor of the state
will not be recognized or enforced in the forum if the property is located outside the
territorial limits of the foreign state at the time of the enactment. Foreign public laws
that affect a transfer to the state of private property located within its territorial limits
CONFLICT OF LAWS Atty. Eduardo R. Robles
Cupin | Gan | Gerona | Gonzales 3A | 2015
are not per se subject to exclusion either on the basis of the public policy exception or
on penal or other political laws.

Jurisdiction in Personam
The status of an individual is occasionally relevant to questions of jurisdiction. There are
some persons whose status prohibits them from bringing an action and there are some
whose status confers immunity from action.
Isolated transaction; doing business; in estoppel
The standing of an unorganized entity is not regulated by statute, however, and so must
be resolved by the application of basic conflicts principles.
The novel question which arises is whether a foreign legal person which would not be
recognized as a legal person by our own law can sue in our courts.
Theories of territorial sovereignty give to the sovereign the right to control any person
physically present in the territory. The corollary is an absence of power to regulate
persons in other jurisdictions because that would constitute an interference with the
sovereignty of that jurisdiction.
There are three ways in which jurisdiction may be asserted against an out-of-province
defendant: (1) presence-based jurisdiction permits jurisdiction over an extra-provincial
defendant who is physically present within the territory of the court; (2) consent-based
jurisdiction permits jurisdiction over an extra-provincial defendant who consents,
whether by voluntary submission, attornment by appearances and defense or prior
agreement to submit disputes to the jurisdiction of the domestic court; and (3) assumed
jurisdiction initiated by service of the courts process out of the jurisdiction;
The forum has an interest in protecting the legal rights of its residents and affording
injured plaintiffs generous access for litigating claims against tortfeasors.
If the defendant has done anything within the jurisdiction that bears upon the claim
advanced by the plaintiff, the case for assuming jurisdiction is strengthened.
Traditionally, the view has been held that jurisdiction in a personal action rests upon
physical power and the ability of the court to enforce any judgment it may render.
Jurisdiction, therefore, normally depends upon the presence of the defendant within the
territorial limits of the court or upon the voluntary submission of the defendant to the
authority of the court.
Frequently, there is no single forum that is clearly the most convenient or appropriate
for the trial of the action but rather several which are equally suitable alternatives.
Where more than one forum is capable of assuming jurisdiction, the most appropriate
forum is determined through the forum non conveniens doctrine, which allows a court to
decline to exercise its jurisdiction on the ground that there is another forum more
appropriate to entertain the action.

Discretion to decline Jurisdiction and Restraint of Foreign Proceedings
In cases where jurisdiction has been founded as of right, i.e. where the defendant has
been served with proceedings within the jurisdiction, the defendant may apply to the
court to exercise its discretion to stay the proceedings on the ground which is usually
called forum non conveniens.
In order to justify a stay, two conditions must be satisfied: (a) the defendant must
satisfy the court that there is another forum to whose jurisdiction he is amenable in
which justice can be done between the parties at substantially less inconvenience or
expense, and (b) the stay must not deprive the plaintiff of a legitimate personal or
CONFLICT OF LAWS Atty. Eduardo R. Robles
Cupin | Gan | Gerona | Gonzales 3A | 2015
juridical advantage which would be available to him if he invoked the jurisdiction of the
(English) court.
If the court concludes at that stage that there is some other available forum which
prima facie is clearly more appropriate for the trial of the action, it will ordinarily grant a
stay, unless there are circumstances by reason of which justice requires that a stay
should nevertheless not be granted. In this inquiry, the court will consider all the
circumstances of the case, including circumstances which go beyond those taken into
account when considering connecting factors with other jurisdictions. One such factor
can be the fact, if established objectively by cogent evidence, that the plaintiff will not
obtain justice in the foreign jurisdiction.
The law relating to injunctions restraining a party from commencing or pursuing legal
proceedings in a foreign jurisdiction has a long history. From an early stage, certain
basic principles emerged which are now beyond dispute. First, the jurisdiction is to be
exercised when the ends of justice require it. Second, where the court decides to grant
an injunction restraining proceedings in a foreign court, its order is directed not against
the foreign court but against the parties so proceeding or threatening to proceed. Third,
it follows that an injunction will only be issued restraining a party who is amenable to
the jurisdiction of the court against whom an injunction will be an effective remedy.
Fourth, it has been emphasized on many occasions that, since such an order indirectly
affects the foreign court, the jurisdiction is one which must be exercised with caution.
As a general rule, before an anti-suit injunction can properly be granted by an English
court to restrain a person from pursuing proceedings in a foreign jurisdiction, comity
requires that the English forum should have a sufficient interest in, or connection with,
the matter in question to justify the indirect interference with the foreign court which an
anti-suit injunction entails.
The courts have developed two forms of remedy to control the choice of forum by the
parties. The first and more conventional device is a stay of proceedings. This enables
the court of the forum selected by the plaintiff (the domestic forum) to stay the action
at the request of the defendant if persuaded that the case should be tried elsewhere.
The second is the anti-suit injunction, a more aggressive remedy, which may be granted
by the domestic court at the request of a defendant, actual or potential, in a foreign
suit. In the usual situation, the plaintiff in the domestic court moves to restrain the
defendant from launching or continuing a proceeding in the courts of another
jurisdiction. Occasionally, the defendant in a foreign jurisdiction who alleges that the
plaintiff in that jurisdiction has selected an inappropriate forum seeks an injunction from
the courts of the alleged appropriate forum, in which no proceeding is pending, to
restrain continuation of the foreign proceedings. While the restraining order operates in
personam on the plaintiff in the foreign suit, and not on the foreign court itself, it has
the latter effect and therefore raises serious issues of comity.
Although both the remedy of a stay and an injunction have as their main objectives the
selection of an appropriate forum for the trial of the action, there is a fundamental
difference between them. In the case of the stay, the domestic court determines for
itself whether in the circumstances it should take jurisdiction, whereas in the case of the
injunction, it in effect determines the matter for the foreign court [some say this is a
breach of comity].

Choice of Law Methodology
Applying foreign law is a matter of sovereign free choice
CONFLICT OF LAWS Atty. Eduardo R. Robles
Cupin | Gan | Gerona | Gonzales 3A | 2015
It is the duty of the courts to recognize rights that flowed from a foreign laws
affecting and binding property, persons, or contracts within that countrys territory.
Choice-of-law principles have traditionally been expressed in rules that say that a
particular type of legal issue is to be determined according to the internal law of a
country with which the case has a defined connection/conviction (not sure). By internal
law is meant the law that applies to a case arising entirely within that country.
Examples
o Formal validity of a marriage is governed by the law of the country in which the
marriage was celebrated
o Capacity to enter into a marriage is governed by the law of the country in which
the party said to be incapable is domiciled.
o Liability in tort is governed by the law of the country in which the tort was
committed
o A testamentary disposition is essentially valid if it complies with the law of the
country in which the testator was domiciled when he died.
o Matters of judicial procedure are governed by the law of the forum (the country
in which court hearing the case is sitting)
READ CASES
o Re Annesley (1926), 1 Ch. 692
o Marquard Investments Ltd. Vs. De Savoye(?) (1990), 76 DLR (4
th
) 256 (SSC)
o Lynch v. Provisional Govt of Paraguay (1871), LR 2 P&D(?) 268 (Prob. & Divorce
Ct.)
o Starkowski vs. Atty. General (1954), AC 155 (HL)
Each choice of law rule identifies a category of legal issue for example, formal validity
of a marriage or liability in tort and says that an issue falling under that category
must be decided according to the law of a country designated by means of a
connecting factor place of celebration of the marriage, domicile, place of
commission of the tort, or place in which the case is being heard. The designated legal
system may be that of another state, a foreign country, a subdivision of a foreign
country, or the forum itself.
It is important to realize that, as a practical matter, a choice-of-law rule only comes into
play if a party to the legal dispute
o Pleads that an issue should be decided by a law other than that of the forum;
and
o Proves, as a fact, that the outcome of the issue is different under the foreign law
than it is under the law of the forum.
If none of the parties to a dispute raises the question of choice of law, the court must
simply decide the issue according to the rules of its own legal system. The same applies,
even if a party does rely on a foreign legal rule, if that party fails to satisfy the court as
to what the relevant foreign legal rule is or how it applies to the facts. Again, the court
must apply its own law.
Most potential choice-of-law issues are never raised, either because the foreign law
would just lead to the same result as the lex fori, or because it is not worth anybodys
while to marshal the evidence to prove the foreign legal rule.
READ CASES
o Avenue Properties Ltd. Vs. First (?) City Dev. Corp (1986), 32 DLR (4
th
) 40
o Huntington v. Attrill (1893), AC 150 (PC Ont.)
o Moran vs. Pyle National (Canada) Ltd. (1973), 43 DLR (3d) 239 (SCC)
CONFLICT OF LAWS Atty. Eduardo R. Robles
Cupin | Gan | Gerona | Gonzales 3A | 2015
o Babcock vs. Jackson, 191 NE 2d 279 (NY Ct. Apps. 1963)
o Sayers v. International Drilling Co. NV (1971), 1 WLR 1176 (CA)
o Re Edward and Edward (1987), 39 DLR (4
th
) 654 (Sask. CA)
o Tolofson v. Jensen (1994) 3 SCR 1022.
Any party who relies on a foreign legal rule must justify its application by invoking a
choice of law rule. Different legal systems use different approaches to choice of law.
For instance, common law jurisdictions traditionally decide issues relating to personal
status by applying the law of the persons domicile (permanent residence). Civil law
jurisdictions traditionally apply the law of the country of which the person is a citizen,
which may be a completely different country.
So it is quite possible for a choice-of-law question to be decided according to one
countrys law if the issue arises in the court of a common law jurisdiction and by another
countrys law if it arises in the court of a civil law jurisdiction.
There is no such thing as an internationally accepted system of choice of law. So the
choice of law rule invoked by a party must be drawn from a specified jurisdiction. That
Jurisdiction is, and must be, the forum itself.
Choice of law rules, whether judge-made or statutory, are, in positivist terms,
commands to the court by the lawmaking authority of the courts own country. The law
says to the judge: Here is the basis on which you must decide whether to apply a rule
of our own internal law or a rule of foreign law to decide on a particular persons legal
rights. You are not free to apply or not to apply rules of foreign law as the spirit moves
you. You can only apply rules of foreign law if the choice of law rule says that you can.
A choice of law problem arises whenever a party asks a court to decide an issue by
applying a foreign legal rule. In order to do that, the party must (aside from proving the
content of the rule) persuade the court that
o There is a choice of law rule, as the party says;
o The choice of law rule does embrace, by the category of issues to which it refers,
the foreign legal rule the party relies on (this is characterization of the foreign
legal rule);
o The choice of law rule, via its connecting factor, deos point to the foreign
country in question; and
o The choice of law rule should be applied so as to make the foreign legal rule
operate, as the party says, to establish the partys claim or right.
Even if the relevant choice of law rule otherwise indicates that a certain foreign internal
legal rule is applicable to a case, there are still a number of reasons why this may not
happen.
Some of these are exceptions to the application of a choice of law rule and others are
due to ambiguities that are inherent in the choice of law system itself.
The major exceptions to a choice of law rule take two forms.
o One is simply the existence of a more specific choice of law rule that mandates a
different result. Usually, the more specific choice of law rule takes the form of a
statutory directive of the lex fori.
o The other exception is that the foreign rule of law may be a barred from
application by being a rule of penal law, a rule of tax law, or against the public
policy of the forum.
The technique by which a court follows its own choice of law rule to X law, but then
follows Xs choice of law rule back to the forum, is called RENVOI (reference back). The
CONFLICT OF LAWS Atty. Eduardo R. Robles
Cupin | Gan | Gerona | Gonzales 3A | 2015
technique can be applied equally if Xs choice of law rule refers, not to the lex fori, but
to a third law.
READ CASES
o Schwebel v. Ungar (1965), SCR 148
o Ross v. Ross (1894), 25 SCR 307
o Vladi v. Vladi (1987), 39 DLR (4
th
) 563 (NS SC)
o Tezcan v. Tezcan (1992), 62 BCLR (2d) 344 (CA)
o Amin Rasheed Shipping Corp vs. Kuwait Ins. Co (1984), AC 50 (HL).
o Ambrose v. Ambrose (1961), 25 DLR (2d) 1 (BC CA).

Recognition and Enforcement of Foreign Judgments and Arbitral Awards
It is a fundamental tenet of territorial sovereignty that the laws and orders of one
sovereign cannot be directly enforced in the territory of another. The corollary is that all
jurisdictions have rules that provide for conversion of foreign orders to local orders,
enforceable by local processes. Nothing prevents a sovereign from waiving the right to
require conversion. Similarly, nothing prevents one state denying recognition to
judgments and orders of all other states but such a degree of non-cooperation is not
considered to e in the self-interest of the state.
The traditional common law rules require the foreign judgment creditor to persuade the
forum that:
1. The foreign judgment is final and conclusive;
2. The foreign court had jurisdiction in the international sense
An action on a foreign judgment at common law has traditionally been viewed as an
action in debt, the debt having been created by the foreign judgment. For limitation
period purposes, an action on a foreign judgment was, therefore, subject to the same
limitation period as a domestic action in debt, regardless of the limitation period
attached to the enforcement of the judgment in the originating jurisdiction.
Another distinction between domestic and foreign judgments is that the doctrine of res
judicata does not apply to foreign judgments. The cause of action is not considered to
have merged in the foreign judgment. It may be possible, therefore, for a plaintiff to sue
again on the original cause of action, should the foreign judgment be one not
recognizable by the forum.
Where a court of competent jurisdiction has adjudicated a certain sum to be due from
one person to another, a legal obligation arises to pay that sum, on which an action of
debt to enforce the judgment may be maintained. The judgment must be one which
results from an adjudication of a court of competent jurisdiction, and one that is final
and conclusive.
In England
1. The English courts will not enforce the judgment of a foreign court against a
defendant who does not reside within the jurisdiction of that court, has no assets
within that jurisdiction and does not appear before that court, even though that
court by its own local law has jurisdiction over him;
2. English courts will not enforce the judgment by a foreign court against a
defendant who, although he does not reside within the jurisdiction of that court,
has assets within that jurisdiction and appears before that court solely to
preserve those assets which have been seized by that court;
3. English courts will enforce the judgment of a foreign court against a defendant
over whom that court has jurisdiction by its own local law (even though it does
CONFLICT OF LAWS Atty. Eduardo R. Robles
Cupin | Gan | Gerona | Gonzales 3A | 2015
not possess such jurisdiction according to the English rules of conflict of laws) if
that defendant voluntarily appears before that foreign court to invite that court in
its discretion not to exercise the jurisdiction which it has under its own local law.
The merits of a foreign judgment, in rem or in personam, are not examinable at all
whether the judgment is relied upon by the plaintiff as a cause of action or pleaded by
the defendant as a bar to an action instituted against him. The rule that the courts will
not permit a re-trial of the issues which have already been decided by the foreign court
is now well-settled in England.
A valid foreign judgment creates a new right in the judgment plaintiff and imposes a
new duty on the judgment defendant, these rights being independent or distinct from
the cause of action alleged in the suit wherein the judgment was rendered. A suit on
this judgment being one on a new right, it is immaterial whether or not a valid cause of
action existed prior to the judgment.
The Courts (of England) will not enforce the decisions of foreign courts which have no
jurisdiction over the subject matter or over the persons brought before them. But the
jurisdiction which alone is important is the competence of the Court in an international
sense i.e., its territorial competence over the subject mater and over the defendant.
Its competence or jurisdiction in any other sense is not regarded as material by the
courts (of England). [Provided that the foreign court had jurisdiction to pronounce a
judgment in personam according to conflict of laws rules, in principle, it is immaterial to
the recognition or enforcement of the foreign judgment that the foreign court lacked
authority by the law of its own sovereign to adjudicate concerning the cause of action or
subject matter that resulted in the alleged judgment or concerning the person of the
alleged judgment debtor].
The common law provides a defendant in an action for recognition and enforcement of a
foreign judgment with a number of possible defences. Judgments based on foreign
penal or revenue laws are not enforceable and neither are those based on laws that are
contrary to the public policy of the forum. Additional defences are that the foreign
judgment was obtained by fraud or in breach of natural justice. It is not a defence,
however, that the foreign court erred in law, even if the error in law was one concerning
the law of the recognizing court. The court being asked to recognize a foreign judgment
is not sitting as an appellate court.
The correctness in fact or in law of a foreign judgment is irrelevant in an action to
enforce that judgment in Ontario (Canada). This is so regardless of whether the foreign
judgment followed a trial on the merits or a default. As the correctness of the decision
of the foreign court is irrelevant, it follows that the merits of the claim or the merits of
defences to the claim are equally irrelevant.
In Canada, fraud going to the basis upon which the foreign court took jurisdiction, or
fraud which undermines the integrity of the foreign proceedings, may be proved in
defence to an action for the enforcement of that foreign judgment. [The fraud relied on
must be something collateral or extraneous, and not merely the fraud which is imputed
from alleged false statements made at the trial, which were met by counter-statements
by the other side, and the whole adjudicated upon by the Court and so passed on into
the limbo of estoppel by the judgment. This estoppel cannot be disturbed except upon
the allegation and proof of new and material facts, or newly discovered and material
facts which were not before the former Court and from which are to be deduced the
new proposition that the former judgment was obtained by fraud. The burden of that
CONFLICT OF LAWS Atty. Eduardo R. Robles
Cupin | Gan | Gerona | Gonzales 3A | 2015
issue is upon the defendant, and until he at least gives prima facie evidence in support
of it, the estoppel stands.]
[New facts refers to facts which have come into existence after the foreign judgment
was obtained. Newly discovered facts refers to facts which existed at the time the
foreign judgment was obtained but were not known to the defendant. These must be
limited to those facts which could not have been discovered prior to the granting of the
foreign judgment through the exercise of reasonable diligence.]
This so-called natural forum is the one with which the action has the most real and
substantial connection If a party seeks out a jurisdiction simply to gain a juridical
advantage rather than by reason of a real and substantial connection of the case to the
jurisdiction, that is ordinarily condemned as forum shopping. On the other hand, a
party whose case has a real and substantial connection with a forum has a legitimate
claim to the advantages that that forum provides.
Canadian courts will not recognize or enforce a foreign law or judgment or a right,
power, capacity, status or disability created by a foreign law that is contrary to the
forums stringent public policy, essential public or moral interest or conception of
essential justice and morality. Public policy serves a corrective function. Its use is
defensive if foreign law is to be refused any effect on public policy grounds, it must
violate some fundamental principle of justice, some prevalent conception of good
morals, or some deep-rooted tradition of the forum.
Enforcement of a foreign judgment will not be refused on the grounds that the foreign
law on which the judgment is based is more harsh than the law of the forum.
To impeach a judgment on the ground of fraud, the fraud must be of an extrinsic
nature, such that the defendant was deprived of an adequate opportunity to present his
case. Intrinsic fraud, such as that committed in respect of the capacity of the defendant,
etc. will not violate a judgment
Arbirtral awards read:
1. 1955 New York Convention on the Recognition and Enforcement of Foreign
Arbitral Awards; and
2. 1985 UNCITRAL Model Law on International Commercial Arbitration

Invoking and Determining Foreign Law
Foreign law is not engaged simply because the choice-of-law rules of the lex fori support
its application. Instead, foreign law is conceived as a question of fact. As such, its
applicability must be pleaded expressly and its content and effect then proved according
to the ordinary rules of evidence by expert testimony.
Most legal systems in continental Europe and Latin America treat foreign law as law with
the result that it must (or at least may) be applied ex-officio by the court whether or not
invoked by the parties. Although the parties can be (and usually are) enjoined to assist
in ascertaining the foreign law, the court has the final word.
English laws treatment of foreign law may be expressed in four principles:
1. Foreign laws are facts, not laws. As such, they are beyond the scope of judicial
notice, being unknown and unknowable to the judge.
2. Being facts, foreign laws must be formally proved, generally by expert evidence,
for a judge is unaware of their content;
3. Being facts, foreign laws are subject to such principles of pleading as govern
other facts. This means that one who relies upon foreign law must expressly
plead to it, but, equally, one who does not so rely need not do so;
CONFLICT OF LAWS Atty. Eduardo R. Robles
Cupin | Gan | Gerona | Gonzales 3A | 2015
4. If foreign law is not pleaded, or is pleaded but not adequately proved, a court
will apply English law instead, for knowing only English law, it presumes foreign
law to be the same.
As with any other question of fact, the burden of pleading and proving foreign law lies
on the party who wishes to bare his or her claim or defence on it. However, neither
party is under an obligation to invoke or prove foreign law. The law of the forum applies
by default no matter how patent the foreign elements in the case may be.
Expert witnesses [to prove foreign law]:
1. Those who have practiced or applied the relevant foreign law as lawyers or
judges;
2. Law teachers and others whose office or position requires them to have a
working knowledge of the relevant foreign law.
Foreign law need not be proved formally if the parties can agree on its legal effect.
Typically, this will be done by an agreed statement of facts submitted prior to trial but
the foreign law can be admitted, like any other question of act, at any point in the
proceedings. Even when the parties cannot agree on the effect of the foreign law, they
may still be able to avoid the burden of calling expert testimony by agreeing to submit
written materials on the foreign law (either jointly or separately) for interpretation and
application by the court. However, the court may refuse to take on the task of
determining the foreign law in this way if the issues presented are seen as too
complicated or the materials submitted do not clearly evidence the relevant foreign law.

Law of Procedure
The law of the forum governs procedure. The rule is grounded in the pragmatic
demands of administrative necessity. To require those involved in the administration of
justice to know and apply a foreign procedural law would result in unacceptable delay
and expense.
There seems to be general agreement that the following issues are the province of lex
fori:
o The appropriate court for bringing an action;
o The form of the originating process and other pleadings and the manner and
mode of their service;
o The mode of conduct of a proceeding generally, including the availability of
preliminary and interlocutory motions and applications; and
o The availability and mode of appeal
One of the eternal truths of every system of private international law is that a distinction
must be made between substance and procedure, between right and remedy. The
substantive rights of the parties to an action may be governed by a foreign law, but all
matters appertaining to procedure are governed exclusively by the law of the forum.
The weight of current judicial and academic authorities supports the proposition that the
quantification or assessment of damages is a matter of procedural law to be decided in
accordance with the law of the forum. Thus, even if the lex loci delicti applied to the
substantive law on the heads of damage, the quantification would nonetheless be
determined according to the law of the forum because the quantification of damages is
a procedural matter.
Common law courts and scholars often distinguish between substantive rules relating
to which heads of loss are recoverable, and procedural rules relating to the
assessment or quantification of damages.
CONFLICT OF LAWS Atty. Eduardo R. Robles
Cupin | Gan | Gerona | Gonzales 3A | 2015
Since the award of costs is typically a discretionary judicial tool used to control the
litigation process as opposed to forming part of the lis between the parties, issues
relating to costs are classified as procedural. The purpose of an award of pre-judgment
interest, on the other hand, is to compensate a plaintiff for delay in receiving its
damages, and has accordingly been treated as substantive by Canadian courts.
Overall, the law tends to support a granting status in cases where the entity in question
is recognized as a legal or juridical person by the laws of its home jurisdiction, in the
sense of having status to sue. The principle of comity of nations appears to further
strengthen than position.
Whether a co-obligor is liable jointly or jointly and severally touches on liability and the
scope of liability, and as such, has been characterized as a question of substance
governed by the law that governs the obligation on which liability is founded.
In the analogous area of subrogation, it seems also to be accepted that the question
whether the subgrogatee is entitled to sue the third person on the subrogated right of
action is his or her own name is one of procedure within the province of forum law.
A distinction is often drawn between the mode of proving a relevant fact (procedural)
and the question of what facts must be proved and their effect once proved
(substantive).
A direct action statute giving a third party who has recovered a judgment against an
insured tortfeasor the right to sue the tortfeasors liability insurer is clearly substantive in
its effect it creates a cause of action that otherwise would not be available against the
defendant.

Torts
As a general rule, in order to found a suit in England for a wrong alleged to have been
committed abroad, two conditions must be fulfilled:
1. The wrong must be of such a character that it would have been actionable if
committed in England; and
2. The act must not have been justifiable by the law of the place where it was
done.
As to foreign laws affecting the liability of parties in respect of bygone transactions, if
the foreign law touches only the remedy or procedure for enforcing the obligation, as in
the case of an ordinary statute of limitations, such law is no bar to an actin in England;
but if the foreign law extinguishes the right, it is a bar in England equally as if the
extinguishment had been by a release of a party, or an action of Englands own
legislature.
U.K. Modern approach:
o The general rule is that the applicable law is the law of the country in which the
events constituting the tort or delict in question occurred.
o Where the elements of those events occur in different countries, the applicable
law under the general rules is to be taken as being:
For a cause of action in respect of personal injury caused to an individual
or death resulting from personal injury, the law of the country where the
individual was when he sustained the injury;
For a cause of action in respect of damage to property, the law of the
country where the property was when it was damaged; or
In ant=y other case, the law of the country in which the most significant
element or elements of those events occurred.
CONFLICT OF LAWS Atty. Eduardo R. Robles
Cupin | Gan | Gerona | Gonzales 3A | 2015
As a general rule, an act done in a foreign country is a tort and actionable as such in
England of if it is both:
a) Actionable as a tort according to English law, or in other words is an act which, if
done in England, would be a tort; and
b) Actionable according to the law of the foreign country where it was done.
But a particular issue between the parties may be governed by the law of the country,
which, with respect to that issue, has the most significant relationship with the
occurrence and the parties.
An action to recover damages for a tort is transitory, and can, as a general rule, be
maintained wherever the wrongdoer can be found.
An action for tort causing death, in a state where the statute has provided a right of
action therefor, can be maintained in any other state in which the common law obstacle
to such an action has been removed, if the statute of the place where the cause of
action arose is not in substance inconsistent with the statutes or public policy of the
state in which the right of action is sought to be enforced.
Canada: The lex loci delicti should be displaced by another law when it is substantially
more appropriate to apply the latter law than the former, based on the significance of
the factors that connect the wrong with each of the relevant countries.
An action for a tort committed in a foreign country will lie only when it is based upon an
act which will be considered as tortious both in the place where committed and in the
lex forii; in such case, the law of the place where the tort was committed governs.
Lex Loci Delicti the law of the place of the wrong; that is, the law of the state or
country where the conduct complained of in a tort case took place.

General Choice of Law Principles
Read:
- Phillips v. Eyre, 1870, LR 6 QB 1 (Ex. Ch.)
- The Halley, 1868, LR 2 PC 193
- Machado v. Fontes, 1897, 2 QB 231 (CA)
- McLean v. Pettigrew, 1845, 2 DLR 65 (SCC)
- Bobcock v. Jackson, 191 NE 2d 279 (NY Ct. Apps. 1963)
- Schultz v. Boy Scouts of America Inc., 480 NE 2d 679 (NY Ct. Apps)
- Tolofson v. Jensen, Lucas, etc v Gaguon (sp?), 1996, 3 SCR 1022
- Somers v. Fournier, 2002, 60 OR (3d) 225 (CA)
- Australian Broadcasting Corp. v. Waterhouse, 1991, 25 NSWLR 519 (CA)
- Boys v. Chaplin, 1971, AC 356 (HL)

Substantive law creates rights and obligations and is concerned with the ends which the
administration of justice seeks to attain, whereas procedural law is the vehicle providing
the means and instruments by which those ends are attained. It regulates the conduct
of Courts and litigants in respect of the litigation itself, whereas substantive law
determines their conduct and relations in respect of the matters litigated.
General conflict of laws principles regarding damages distinguished between an
entitlement to damages and the quantification or measurement of damages.
Remoteness and heads of damage are questions of substance governed by the lex loci
delicti, whereas the quantification or measurement of damages is a question of
procedure governed by the lex fori.
CONFLICT OF LAWS Atty. Eduardo R. Robles
Cupin | Gan | Gerona | Gonzales 3A | 2015
In Australia, statutory provisions which limits the amount of damages which may be
recovered in respect of non-economic loss are procedural in nature. [When a plaintiff is
entitled to enforce a civil liability I tort in respect of a tort committed outside the forum
territory, the quantification of damages to be awarded in respect of the tort is a matter
for the law of the forum. The quantification of damages in a matter distinct from the
kind of civil liability in respect of which damages are to be quantified.]
There is little doubt that the extent to which a plaintiffs right of recovery is reduced by
the plaintiffs own negligence is a matter of substantive law and so governed by the law
that governs the defendants liability, presumably the lex loci delicti. So, if contributory
negligence is a complete bar by the lex loci delicti, the plaintiffs cause of action will be
defeated.
There seems little doubt that vicarious liability rules are to be characterized as
substantive, not procedural.
If two or more defendant are jointly and severally liable, the right of one defendant to
contribution from the others is probably best characterized as a restitutionary obligation
(which will almost certainly be the lex loci delicti if the wrongdoers respective torts were
committed in the same country).
The US position holds that the issue of intra-family immunity will usually have its most
significant relationship with the local law of the state of the parties domicile, and this
position has scholarly backing in England.
The manner of implementing a right of subrogation is a question of procedure.
The law of the state or territory in which the plaintiff, who is a natural perso, is resident
well be applied in cases of national defamation, but without forsaking a measure of
flexibility for appropriate cases. A plaintiff will general suffer most harm from a
defamatory publication in the jurisdiction where he resides. This is because the plaintiff
is mostly involved, on a day to day basis, with other residents of that jurisdiction.

Succession
Read:
- In the Estate of Maldonado
- Stringam v. Dubois

The manner of distributing property on death tends to compound the potential conflict-
of-laws issues, since the office and function of the personal representative are treated
separately from questions relating to the ultimate entitlement of the deceaseds property
that is, the courts distinguish between administration and succession. Question of
administration are said to be governed by the location of the deceased persons assets,
whie questions of succession are generally governed by the last domicile of the
deceased person.
The common law requires the separate administration of an estate in each jurisdiction
where assets are located and refuses to recognize the authority of a foreign
representative without a local grant. The modern approach in common law jurisdictions
seems that courts are willing to recognize the primacy of the last domicile of the
deceased person. For instance, a local grant will normally be made to a foreign
representative appointed by the appropriate authority of the last domicile of the
deceased.
The rules concerning the succession to property on death distinguish between testate
(with a will) and intestate (without a will) succession and between movables and
CONFLICT OF LAWS Atty. Eduardo R. Robles
Cupin | Gan | Gerona | Gonzales 3A | 2015
immovable. As to intestate succession, the rules are relatively straightforward. For
movable, jurisdiction is connected to the question of administration, which in turn is
based on the existence of local assets. However, in these proceedings, the courts
jurisdiction is not restricted to the determination of the entitlement to local assets. The
applicable choice of law is the last domicile of the deceased. Recognition is based on the
appropriateness of the foreign courts assertion of jurisdiction, which in modern times
should be based on either the existence of local assets or the domicile of the deceased
(or, perhaps, some more general standard such as the existence of some real and
substantial connection between the estate an the foreign jurisdiction).
Generally, all questions concerning the succession to land are governed by the lex situs.
In the case of testate succession, the conflict of law rules are more complex. As with
intestate succession, jurisdiction is connected to administration or, more precisely, to the
granting of probate, which in turn is based on the existence of local assets. Similarly,
recognition should be based on whether the foreign authority assumed jurisdiction in
similar or appropriate circumstances. However, the choice of law rules for testate
sucession are not as simple as those for intestate succession. They start with the same
general idea that movables should be governed by the law of the last domicile of the
deceased person and immovable by the lex situs. However, these general principles
have been modified so that some aspects of testate succession are referable to other
laws [e.g. age or mental competence, rules for interpreting a will, validity]
The general rule that foreign personal representatives have no authority to act without a
local grant is qualified in two ways. First, foreign representatives who have reduced
estate property into their possession abroad can assert their title without a local grant.
The rationale for this exception is a bit obscure but, with tangible property, may be
based on a desire to enforce a right that is thought to have been vested abroad. By a
process analogous reasoning, the exception has been extended to intangibles,
particularly specialty debts and simple debt claims that have been reduced to judgment
in a foreign court. The second exception is that the foreign representatives who
improperly deal with local assets without a local grant can be held liable as an executor
de son tort. This exception is less difficult to explain, since the courts are obviously
unwilling to allow anyone acting locally to claim immunity from local supervision simply
by failing to obtain a local grant.
Questions of succession on death can involve jurisdiction, recognition, and choice of law
issues. For the purposes of jurisdiction and recognition of foreign judgments there no
important distinctions between testate and intestate succession, and the distinction
between movables and immovable may be less significant than in other areas. For the
purpose of choice of law, however, it is necessary to distinguish between testate and
intestate succession and between movables and immovables.
Jurisdiction to hear a dispute concerning succession on death is based on jurisdiction to
administer the estate, which in turn is primarily based on the presence of local assets.
This is jurisdiction in the private international law sense. There may be other internal
venue and jurisdictional rules within the state that assign particular disputes to particular
courts. For instance, some states may continue to distinguish between the validity of a
will and its construction for some procedural purposes based on the fact that the former
is a matter within the jurisdiction of the surrogate courts and the latter is within the
jurisdiction of the courts of equity.
CONFLICT OF LAWS Atty. Eduardo R. Robles
Cupin | Gan | Gerona | Gonzales 3A | 2015
The choice of law rules applicable to intestate succession distinguish between movables
(governed by the law of the last domicile) and immovable (governed by the law of the
situs).
The development of choice of law rules in relation to testate succession may be seen as
a process of refinement, where the universal application of the last domicile of the
deceased has given way to more particular or additional rules. [Modern legislation allows
testators to use the form of several different states, at least as far as movables are
concerned.] [ In common law, the essential validity of a will of movables was referred to
the law of the deceaseds domicile at death.]
Several academic authorities suggest that personal capacity to make a will disposing of
movables should be governed by the law of the testators domicile at the time the will is
made rather than the testators domicile at the time of death.]

Contracts and Restitution
If each partys obligations depended on a different legal system, or if a single partys
obligation were derived from multiple legal systems, the result might well be incoherent.
Hence, the determination of the proper law has become the key to fixing the rights and
duties of all the parties to the contract in relation to almost all the issues that can arise.
In the determination of the proper law, the role of the parties intention meaning their
objectively manifest common intention is crucial.
The parties agreement as to the proper law must be given effect, provided the intention
expressed is bona fide and legal, and provided there is no reason for avoiding the choice
on the ground of public policy.
A contract can only derive its force from a living system of law, no a set of rules frozen
in time.
A contract shall be governed by the law chosen by the parties. The choice must be
expressed or demonstrated with reasonable certainty by the terms of the contract or the
circumstances of the case. By their choice the parties can select the law applicable to
the whole or a part of the contract.
The parties can agree that a particular countrys law shall govern only part of their
contract, which implies that the parties can agree to have different parts of the contract
governed by different laws. [Presumably, the parts governed by different laws must be
severable from each other in their operation, or internal contradictions may arise.]
The parties may at any time agree to subject the contract to a law other than that which
primarily governed it Any variation by the parties of the law to be applied made after
the conclusion of the contract shall not prejudice its formal validity or adversely affect
the rights of third parties.
The parties choice of an exclusive judicial forum, like a choice of a place of arbitration,
can be the basis for inferring an agreement on their part that the law of that forum shall
govern the contract.
The place where the contract was made is not by any means decisive in determining the
question of what law is applicable to the contract.
The substance of the obligation must be determined by the proper law of the contract,
i.e., the system of law reference to which the contract was made or that with which the
transaction had its closest and most real connection.
The proper law of a contract is the law which the parties intended to apply, and where
they have expressed their intention that contract will be so governed by the law so
chosen if their expressed intention is bona fide, legal and not against public policy, and
CONFLICT OF LAWS Atty. Eduardo R. Robles
Cupin | Gan | Gerona | Gonzales 3A | 2015
it is immaterial that the contract has no connection with such law and that it makes
foreign statutes applicable to certain eventualities.
No court will give effect to a choice of law is the parties intended to apply it in order to
evade the mandatory connection and which, for their reason, the court would, in the
absence of an express or implied choice of law, have applied.
The fact that the parties have chosen a foreign law, whether or not accompanied by the
choice of a foreign tribunal, shall not, where all the other elements relevant to the
situation at the time of the choice are connected with one country only, prejudice the
application of rules of the law of that country which cannot be derogated from by
contract, hereinafter called mandatory rules.
Since the rules of private international law are usually not of constitutional force, they
are subject to being overridden by legislative fiat. The ordinary treatment of foreign
contracts [those whose proper law is not the law of the forum] is that the rules of the
lex fori apply to the contract only if the rules of the lex fori apply to the contract only if
the rules are procedural. However, the legislature may choose to depart from the
ordinary approach by directing the court to apply a particular substantive rule even to a
foreign law.
A court can apply the law of its own jurisdiction in substitution or supplementation for
the proper law of the contract in two circumstances. The first is where the law is
procedural, is of such a nature that it should be applied. The court has no alternative
but to do this where the local legislation specifically states that certain procedures will
apply, notwithstanding that the proper law provision of local law in preference to the
foreign proper law of the contract where it is satisfied that it would be contrary to public
policy to do otherwise.
It shall be up to the forum to decide when it applied the mandatory provisions of the
law of another State with which the contract has close ties.
It is true generally that the lex loci contractus, as such, is regarded as irrelevant if the
contract has another law as its proper law.
No universal rule can be laid down for the construction of statues, as to whether
mandatory enactments shall be considered directory only or obligatory, with an implied
nullification for disobedience. It is the duty of courts of justice to try to get at the real
intention of the legislature by carefully attending to the whole scope of the statute to be
construed.
The fact that the parties have expressly chosen to submit their disputes under the
contract to a particular arbitral forum of itself gives rise to a strong inference that they
intended that their mutual rights and obligations under the contract should be
determined by reference to the domestic law of the country in which the arbitration
takes place, since this is the law with which arbitrators sitting there may be supposed to
be most familiar.
If no law is designated in that act or if the law designated invalidates the juridical act,
the courts apply the law of the country with which the act is most closely connected, in
view of its nature and the attendant circumstances.
If the parties have not selected the applicable law, or if their selection proves ineffective,
the contract shall be governed by the law of the state wth which it has the closest ties.
The court is bound by any statute of the forum state that dictates what the governing
law of a contract is to be or that invalidates the parties agreement as to the governing
law.
CONFLICT OF LAWS Atty. Eduardo R. Robles
Cupin | Gan | Gerona | Gonzales 3A | 2015
The rights and duties of the parties with respect to an issue is contract are determined
by the local law of the state which, with respect to that issue, has the most significant
relationship to the transaction and the parties. In the absence of an effective choice of
law by the parties, the contracts to be taken into account to determine the law
applicable to an issue include: a) place of contracting; b) the place of negotiation of the
contract; c) the place of performance; d) the location of the subject matter of the
contract; e) the domicil, residence, nationality, place of incorporation and place of
business of the parties in accordance to their relative importance.
In the absence of evidence that the parties intended another law to apply, the mode of
performing a contract, as distinct from the substance of the obligation, is governed by
the law of the place at which the obligation is to be performed.
The substance of the obligation is to be determined by one law only, i.e., the proper law
of the contract. The method and manner of performance may be regulated by the law in
the place of performance notwithstanding that this is not the proper law of the contract.
In this respect there may be a split but only as to performance.
If the contract is to be carried out partly in another country that that in which it is made,
that part of it which is to be carried out in that other country, unless something appears
to the contrary, is taken to have been intended to be carried out according to the laws
of that country.
Although restitutionary claims are distinct from claims on a contract, the handling of the
choice of law problem bears a strong resemblance to the choice of law approach to
contract.
The obligation to restore the benefit unjustly obtained is an independent obligation
which does not arise from the volition of the parties. It is governed by the proper law of
the obligation, that is, the law of the local unit with which the obligation to make
restitution has its closest and most real connection
In absence of any previous contractual relationship between the parties, the obligation
to restore the unjust enrichment has its closest and most real connection with the law of
the legal unit where the immediate or ultimate enrichment occurred since the
enrichment is at the heart of the action.