Conflicts of Law

Written Report

Submitted to: Atty. Ruben Cadugo

Submitted by: Cedrick S. Boco

 Introduction to Conflict of Laws/ Private international law

What is the Nature, Definition and Scope of Conflict of Laws/ Private international law?

According to Salonga, Private International Law or conflict of laws is that part of the law of
each state which determines whether in dealing with a factual situation involving a foreign
element, the law or judgment of some other state will be recognized or applied in the forum.

According to Cheshire, is 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.

Accoridng to Westlake defines Private International Law as that department of private

jurisprudence which determines before the courts of what nation each suit should be brought,
and by the law of what nation it should be decided

Judge Goodrich describes Conflict of Laws as that part of the law which deals with the extent to
which the law of a state operates and determines whether the rules of one or another state
should be applied in a legal situation. A conflict of laws

How do problems in conflicts of law arises?

Any case which involves facts occurring in more than one state or nation, so that in deciding the
case, it is deciding the case, it is necessary to make a choice between the laws of different
states or countries.

What are the Elements of a Conflict of Laws Question?

1. Legal Problem or case involving a foreign element

Foreign element is anything which is not domestic and has a foreign component
to it. It can be a foreigner. Foreign corporation, an incident happening in a
foreign country or a foreign law chosen by the parties. Without a foreign
element, the case is only a domestic problem.
2. Determination of whether the law or jurisprudence or judgements of other state/s will
govern and if so, the extent of its recognition/ application in the forum.

What are the 2 concurrent factors that give rise to problems in Conflict of Laws?

1. The diversity of laws

This arose from the division of the world into different States or territorial units, where each
State or units have different system of law.

There is diversity of laws because various nations and races follow different lines of evolution.
The differences in legal rules have their root cause in the peculiar habits, ways of thinking,
norms and customs of each group of people, including what the ruling class or group thought
was necessary to protect its own interests. Each State or territorial unit has its own rules
dealing with the same aspects of human existence—birth, personality, filial relations, marriage,
separation, divorce, property, contracts and transactions, business associations, inheritance,
etc. These matters are usually dealt with differently in each legal system.

2. A situation with foreign element

The presence of a foreign element is inevitable since social and economic affairs of individuals
and associations are rarely confined in geographic limits of their birth or inception.

The forms in which this foreign element may appear are many. The foreign element may simply
consist in the fact that one of the parties to a contract is an alien or has a foreign domicile, or
that a contact between nationals of one State involves properties situated in another State.

So every time a Filipino national marries an alien, each time a person travels abroad by taking a
plane or a boat, or whenever a local businessman concludes a business deal with a firm in
Japan—a host of problems in Conflict of Laws may possibly arise.

Importance and Function

Importance

• To adjust conflicting rights in international, mercantile and corporate transactions

• To solve personal, family, property, and successional, contractual problems, possessed
of facts or elements operating in two or more states

Basic Causes

• Multiplicity of governments with separate legal systems

• Different system of laws may apply to different class of citizens (India)
• Different municipal tribunals may give identical laws varying interpretations

How and why it is observed

• States may observe conflict of laws by complying faithfully with its “conflict rules”;
 REASON: States must necessarily observe the subject because it is part of their own
municipal law;

• Private individuals may in their own way abide by our conflicts rules by observing them
and by complying with judicial decisions on the subject; REASON: Individual citizens
observe it because of fear of municipal sanctions.

The Three-fold Function of Private International Law or Conflict of Laws?

1. To prescribe the conditions under which a court or agency is competent to entertain a

suit or proceeding involving facts containing a foreign element;
2. To specify the circumstances in which foreign judgment will be recognized as valid and
binding in the forum;
3. To determine for each class of cases the particular system of law, by reference to
which, the rights of the parties must be ascertained – this is the fundamental problem of
choice of law— this involves the fundamental problem of choice of law, for it is the
primary function of Private International Law to determine which of several
simultaneously valid legal systems is applicable to a given set of facts.

From these functions, what are the 4 important points that may be gathered?

1. Rules of Private International Law, like all other rules of law, apply only to certain given
facts not characterized as creating some legal relationship.

Only a legal system can determine whether a given set of facts has produced any legal
relationship or not and it is for Private International Law to choose the appropriate system by
which said facts may be determined.

For example, if two persons, a Filipina and an American soldier from California, go through a
marriage ceremony before a Japanese priest in Tokyo, we cannot yet conclude whether there
was a valid marriage, that is, a validly created legal relationship between the two. The answer
to this question will depend on what law we apply. Assuming that Japanese law is the proper
law to be applied, and this law considers the factual situation as having created a legal
relationship between the two, then and only then can we consider that a valid marriage has
been contracted.

2. The selection of legal systems open to the court is limited to those that are simultaneously
valid.

In the above example, a Philippine court may decide to select any of the three legal systems
that might properly apply: Japanese law, California law, or Philippine law.

3. The legal effects of a certain set of facts are not always determined by one single legal
system.
4. It is sometimes necessary to apply several systems, either cumulatively or alternatively.

Distinguished Private International Law from Domestic Law

As to source, International law is formed by means of treaties and custom grown among states.
While Domestic Law is a product of local custom or of legislation

As to relations they regulate, Domestic Law regulates relations between individual persons
under the state while International law regulates relations between states

As to their substance, International law concerns the law between sovereign states while
Domestic law concerns the law of sovereign over individuals.

2 Schools of Thought towards the relationship between International and Domestic law?

1. Monism

Monists believe that international law and domestic law are part of a single legal order where
international law is automatically incorporated into each nation's legal system and that
international law is supreme over domestic law.

Monism requires that domestic courts give effect to international law, notwithstanding
inconsistent domestic law, even constitutional law of a constitutional character.

2. Dualism

Dualists contend that international law and domestic law are distinct, each nation ascertaining
for itself when and to what extent international law is incorporated into its legal system. They
also argue that domestic law determines the status of international law in the domestic system.

Under this view, when domestic law provides that international law applies in whole or in part
within our jurisdiction, it is but an exercise of the authority of domestic law, an adoption or
transformation of the rules of international law.

What School of Thought do we follow in the Philippines?

Philippines adheres to the dualist theory and at the same time adopts the incorporation theory
and thereby makes international law part of domestic law. Thus, Philippine courts to settle
domestic disputes can use International law.

Under Article 2, Section 2 of the 1987 Constitution, only customary law and treaties, which
have become part of customary law become part of Philippine law by incorporation.
In the Philippines, while specific rules on how to resolve conflicts between a treaty law and an
act of Congress, whether made prior or subsequent to its execution, have yet to be succinctly
defined, the established pattern, however, would show a leaning towards the dualist model.

The Constitution exemplified by its incorporation clause (Article II, Section 2), as well as statutes
such as those found in some provisions of the Civil Code and of the Revised Penal Code, would
exhibit a remarkable textual commitment towards internalizing international law. The Supreme
Court itself has recognized that the principle of international law is deemed part of the law of
the land as a condition and as a consequence of our admission in the society of nations.

How does international law become part of domestic law for dualists?

1. Through the Doctrine of Transformation

International Law must be expressly and specifically transformed into domestic law through the
appropriate constitutional machinery such as an act of Congress.

Treaties do not become part of the law of a state unless it is consented to by the state.

2. Doctrine of Incorporation

The incorporation method applies when, by mere constitutional declaration, international law
is deemed to have the force of domestic law.

Thus, International Law becomes part of the law of the land.

What if there is a Conflict between International Law and Domestic Law, which between the
two will prevail?

1. International Rule

As a general rule, before an international tribunal, a state may not plead its own law as an
excuse for failure to comply with international law.

An exception to that is Article 46 of Vienna Convention, in cases where the constitutional

violation was manifest and concerned a rule of its internal law of fundamental importance.

For this purpose, manifest means objectively evident to any State conducting itself in the
matter in accordance with normal practice and in good faith.

2. Domestic Rule
Here, domestic courts are bound to apply the local law. Should a conflict arise between an
international agreement and the Constitution, the treaty would not be valid and operative as
domestic law.

Article 8 Section 5 of the Constitution explicitly recognizes the power of the Supreme Court to
declare a treaty unconstitutional; however, even if the same is declared unconstitutional, the
treaty will not lose its character as an international law.

Distinguished from Public International Law and Private International law

Public International law is the body of rules and principles of action, which are binding upon the
states in their relations with one another.

Private International Law or Conflict of laws deals with cases involving foreign element. In case
of dispute between an individual citizen or state and foreign element, where there is need to
contact with foreign system of law, the private International law will apply.

As to its source, Public International law finds its source in the common will of states whereas
Private International law finds its source in the will of a particular state.

As to its character, the rules of Public International law are international in nature, while rules
in Private International law are national or municipal law in character. This admits of one
exception, for rules in private International law become truly international when embodied in a
convention .

In case of dispute or conflict, in public international law, recourse is had first, to diplomatic
channels then to good offices, mediation, conciliation, commission of inquiry and arbitration,
then to retorsion and other measures short of war, and in extreme cases to war itself; while in
private International law, recourse is had to nationl or municipal tribunals.

What is the Historical Development and Sources of Private International Law ?

In early Period

The first study if Private International law was ay back to the rise of the Italian City-states such
as Florence, Milan, Bologna, Pisa, Venice, Padua and medina which due to their growing health
and progress in trade and commerce, developed customs of their own on a large scale during
the twelfth to the eighteenth centuries.

The resulting inter-municipal conflicts aroused the attention and interest of the Italian jurists.
Easily the most outstanding jurist of this period was bartolus de Saxoferrato who has been
described by many writers as the father of Private International law. a theory of statutes was
formulated to solve the conflicts.

Real Statutes were those applied to things particularly immovables within the territory;
personal statutes were those that applied to and followed a person outside his domicile, such
as laws on personal status and those that concerned movables, inasmuch as with reference to
the latter they followed the person of the owner; mixed statues were an ill-defined group of
laws of a dubious nature and made to apply principally to contracts.

In Sixteenth Century

The political organization of France proved congenial to the development of the statute theory.
The different French provinces had separate systems of law called coutume or customs. Since
these customs differed from the province to province, clashes arose frequently and the French
jurists built upon the statute theory to resolve the conflicts

Charles Dumoulin and Bertrand D’Argente contributed greatly to the development of the law.
Dumoulin was primarily responsible for the doctrine that parties to the contract could choose
and the law that was govern their agreement, a doctrine which was firmly established in
England and continental Europe centuries later and has been adopted in USA.

D’ Argentre, partly motivated by his feudalistic views, put forward 2 theories:

1. That whenever there was any doubt as to whether a statutory rule was personal or real,
or whenever a rule was partly real and partly personal, it was to be deemed real. He
maintained that the term personal statutes should cover only those statutes which deal
with questions of status or capacity or with property in chattels;
2. In matters of succession, where a person leaves immovables in various countries, the
law of the countries concerned should be applied respectively to the immovable therein
situated rather than for the latter to be regulated by one and only one law. English and
American law has adopted this theory, and even by countries influenced by the Roman
Law doctrine of universal succession such as France, Belgium, and Austria.

The doctrine of Comitas Gentium

A further development of the statute theory occurred in the Netherlands during the
seventeenth century. When Netherlands obtained its independence, a new-confederated
nation, composed of legally independent provinces each with its own law, presented a fertile
field for the development of Private International Law.

Zealous of their independence, and heavily basing these writings on the new theory of
sovereignty, a group of Dutch writers vigorously denied that States were under any legal
obligation whatsoever to apply foreign law. They contended that such application, unless
imposed by treaty, results only from comitas gentium, that is, from considerations of courtesy
and expediency.

Huber, whose views influenced Story, laid down three principles:

1. The laws of every State operate within the territorial limits of such State and are binding
on all its subjects but not beyond those limits;
2. Subjects of a State are all those who are found within the limits of its territory, whether
they reside there permanently or whether their presence there is only temporary;
3. Every sovereign, out of comity, admits that a law, which has already operated in the
country of its origin, shall retain its force everywhere, provided that this will not
prejudice the subjects of the sovereign by whom its recognition is sought.

The first two of these principles embody the doctrine of pure territoriality and by the third rule,
extraterritorial effect may be obtained through the application of the doctrine of comity,
primarily designed to secure reciprocity and thereby contribute to the advantage of all nations
concerned.

The well-grounded belief that the blanket application of the territorial law to things and
persons within a State would, in many conflicts cases, result in unfairness compelled the Dutch
writers to advocate the doctrine of comity. Comitas was supposed to be liberally granted in
answer to the demands of international trade. However, the new doctrine only resulted in
giving preference, in a number of cases, to the local public policy over foreign law.

It must be noted that the Dutch did not intend to abandon the theory of statutes. What they
maintained was that this theory should be subordinated to the idea of comitas, to the extent
that the Dutch doctrine recognizes that the sovereign of each country is free, in the absence of
a contrary treaty obligation, to determine under what conditions judges shall apply foreign law.

4. Beginning of codifications

The Dutch emphasis on sovereignty of the State as the source of all rules on Conflict of Laws
induced legislators in Continental Europe to establish rules of Private International Law in their
codes of civil law.

The Bavarian Code of 1756 reproduced some general principles laid down by the statutists. It’s
remarkable aspect is comparable to a similar provision now found in our Civil Code, namely,
that it declines to accept the rule that movables follow the person, replacing it with the
provision that the lex situs (law of the place where the thing is situated) shall prevail “without
any distinction between immovables and movables and between corporeal or incorporeal
things.”
The Prussian General Code of 1794 adopted many rules of the statutists and developed some
rules of its own. The principle of res magis valet quam pereat was applied to Private
International Law in the following manner:

1. If a person has two domiciles, which is possible under European laws, that domicile is
decisive under the law of which the contract or act in question is valid;
2. If by the law of ones domicile, he is incapacitated, whereas by the law of the place
where he entered into a contract, he is qualified to contract, then the law under which
the contract is valid is to be applied—a very sound idea for the protection of commercial
intercourse.

The enactment of the French Civil Code of 1804, after which the Spanish, Belgian, Romanian,
and Peruvian rules on Private International Law were patterned, was a momentous period in
the history of this law.

Article 3 of the Code of Napoleon provided that French laws concerning personal status and
capacity govern Frenchmen even when residing in foreign countries. This article first
established the principle that an individual’s personal law ought to be determined by his
nationality rather than by his domicile.

5. Nineteenth century jurists

The nineteenth century saw the full development of two groups of writers in Private
International Law: the theoretical and the positive, representing respectively, the deductive
and inductive approaches to the subject.

Deductive method begins with a set of priori principles to derive a body of consistent rules
while Inductive method studies actual rules in force and reduce them to systematic order. It
does not claim universal validity.

The Jurists who have made outstanding developments on Private International Law

Joseph Story

Mr. Story is an americvan judge who is the first authoritative writer on anglo-american conflict
of laws. His method was chiefly inductive, positive. According to Mr. Story, every nation possess
an exclusive sovereignty and jurisdiction within its territory. The direct consequences of this
rule is that the laws of every state affectr and bind diretly all property , whether personal or
real, within its territory and all persons who are resident within it, whether natural-born
subjects or alines, and also all contrcats made and acts done within it.

Friedrich Carl Von Savigny

Mr. Savigny is the great German jurist who founded the historical school of jurisprudence. His
monumental system of modern roman law dealt with Private International law which
established the fundamentals of modern conflict of laws.

Pasquale Stanislao Mancini

In the nineteenth century, a profound transformation occurred in France. The Napoleonic Code
provided only one law for all France, provincial lines and conflicting internal laws were thrown
out. A surging tide of nationalistic sentiment invaded the domain of law.

Mancini maintained that the personality of an individual is determined only by his nationality;
an individual’s personality is recognized only if his nationality is recognized.

Nationality became the foundation of a new theory of Private International Law. This theory, as
developed by these jurists, hold that there are in every legal system two kinds of rules:

1. those created in the interest of private individuals; and

2. those for the protection of public order.

Modern Developments

The 3 classes of systems urged by writers on Private International Law in Modern developments

1. The Neo- Statutory System

It is believed on the assumption that 2 or more independent laws are applicable to a

conflicts problem and proceeded to devise some method to determine what law shall
prevail.

The Spanish Civil Code, and consequently, the Civil Code of the Philippines, to a great
extent, fall under this category.

2. The international system

This maintains that there exists or should exist a single body of international rules that
can and should solve all legal problems that involve a foreign element.

A juridical act, according to them should in all countries be governed by the law of the
place in which that act has its seat. But while almost every adherent of the international
system is agreed on this abstract principle, there are wide differences of opinion on the
most appropriate law to govern each legal relation.

3. The territorial system

 The third group maintains that only the law of a State applies to persons and things
within its territory. Foreign law is not applied in the forum. However, not all those who
adhere to this theory are in agreement on its application.

In Philippine Setting

According to Salonga, the American occupation of our islands had immediate effects. American
decisions were cited, but with little appreciation of their origin and context which resulted to
confusion to a subject that was just barely developing. To cite one familiar instance, the
domiciliary principle was applied to problems of personal status and capacity in a jurisdiction
that, owing to the influence of Spanish civil law, should follow the nationality principle.

After half a century of confusion, some kind of order is beginning to emerge, as American
decisions are no longer adopted without question. Comparative researches of European jurists,

along with the works of eminent English writers, have provided new insights and given a sense
of direction to local scholars.

Salonga posits that Conflict of Laws touches and traverses every' department of law: civil law,
remedial law, constitutional law, public international law, corporation law, insurance law,
patent law, and the like. This is supported by the fact that a number of significant rules and
principles are not embodied in the Civil Code, but are found in treaties, international customs,
and judicial decisions.

What are the Sources of Private International Law?

• Codifications
• Special Legislation
• Multilateral Treaties and International Conventions • Bilateral Treaties
• Case Law
• International customs
• The Provisions of the 1987 Constitution

Codififications

Old Civil Code of the Philippines

First 4 articles of Chapter I follow Mancini with the exception that personal property under
the New Code is subject to the law of the country where it is situated instead of the national
law of the owner
Code of Commerce and Insurance Code likewise have similar provisions
Special Legislation
Foreign Investments Act of 1991
Corporation Code
General Banking Act
Trade Marks and Trade Names Law
Patent Law
Carriage of Goods by Sea Act
Investment Incentives
Export Incentives Act

Multilateral Treaties and International Convetions

2 methods of avoiding or minimizing conflicts
1. To secure by international conventions or treaties the unification of the internal
rules or laws of the various countries or territorial units upon as many legal
subjects as possible
These are not sources of Private International Law
This would eliminate the differences which would give rise to problems of Private
International Law
2. To unify the rules of Private International Law so that a case involving a foreign
element may be decided in the same way, irrespective of the forum or place of
litigation

Conventions and treaties with this goal are primary sources of Private International Law

Bipartite Treaties

1. Those which are based on the assumption, though not expressed in clear language, that
only Philippine internal rules govern any problem; this is noticeable in cases involving
contracts and personal status
2. Those which adopt Anglo-American doctrines and precedents without regard to the
provisions contained in the Civil Code; this is true in cases of validity of foreign divorces
3. Those cases which attempted to introduce Anglo-American rules and doctrines, which a
view not only to filling up the gaps by the Civil Code, but also to merge and harmonize
them with established Civil law principles

International customs: Law on Nations

Immovable property is governed by the law of the situs]

Formalities of a legal act are governed by the law of the place where it is executed
Tort is governed by the law of the place where the tortuous act was committed

The constitution

Indirect Sources
Natural law – this presupposes a body of ideal precepts of universal validity for all peoples at
all times and in all places derived from the idea of what an ideal man would do and would not
do, would claim and would concede as the claim of others and arrived at by pure reason
Treatise of jurists and writers – they have actually influenced courts and legislatures to adopt
their views in the resolution of conflict problems