CONFLICTS OF LAW

A.NAME OF SUBJECT
The most popular titles of the subject are PRIVATE INTERNATIONAL LAW and
CONFLICT OF LAWS. Both have been criticized as misleading and, therefore,
inaccurate. The first seems to suggest that there are 2 kinds of international
law, public and private. But in point of fact, Private International Law is
NOT international but NATIONAL LAW. The second term suggests that all
that occurs is a conflict of different laws and legal systems. However, it is
precisely the task of this department of law to choose among several
systems and thus resolve or avoid conflicts.

Note: At any rate, since Conflict of Laws and Private International Law are of
current usage throughout the world, and as no better title has been
conceived so far, further discussion of a terminology issue such as this holds
no promise of much reward.
A. HOW PROBLEMS IN CONFLICT OF LAWS ARISE
It is said that problems in conflict of laws arise because of the phenomenal
advances in the field of communication and transportation, the frequency and
variety of events and transactions that cut across national and territorial
boundaries and mainly due to the diversity of legal systems prevailing in the
world. Any situation, event, or transaction that CUTS ACROSS STATE
LINES may give rise to a problem in Conflict of Laws or Private
International Law. Where persons or things are not involved in any kind of
international trade or international course, no conflicts problem may occur.
Two factors that must concur for a problem to be considered as falling within
the ambit of Conflict of Laws: (1) THE DIVERSITY OF LAWS; and (2) the
presence of a situation containing a FOREIGN ELEMENT.
B. DIVERSITY OF LAWS
If the world were only one State, governed by only one set of rules, and
administered only by one central Government, there would be no need for
Private International Law. The fact however is that the world is composed of
several states or territorial units having diverse and separate systems of law.
But if you come to think of it, why do we have various legal systems with
different rules? Is it not possible for all the states to have identical rules of
law to be uniformly applied and administered? Like for example, why cant
the divorce law in the United States be uniformly adopted and applied by the
Philippines and the rest of the world?
According to anthropological research, the differences is because various
nations and races have not followed exactly the same lines of evolution. The

differences in legal rules have their root cause in the peculiar habits, ways of
thinking, mores and customs of each group of people. Each State has its own
rules dealing with the same aspects of human existence like when it comes to
birth, filial relations, property and so forth.
C. PRESENCE OF A SITUATION CONTAINING A FOREIGN ELEMENT.
The most important factor in determining the existence of a conflict of laws
case is the presence of a FOREIGN ELEMENT which is defined as a factual
situation that cuts across territorial lines and is affected by the diverse laws
of two or more States. When there is no foreign element, no conflict of laws
exist.
The presence of a foreign element is inevitable since social and economic
affairs of individuals and associations are rarely confined to the geographic
limits of their birth or inception. An example is when a Filipino national
marries an alien or whenever a person travels abroad by means of any
transportation or even a businessman who concludes a transaction anywhere
outside the Philippines, a host of problems in Conflict of Laws may possibly
arise.
D. DEFINITION
With the above discussions, we can now adopt the following definition of Private
International Law as 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.
Three points may be noted in this definition:
1.) Private International Law is merely a part of the MUNICIPAL LAW of each
state;
2.) The subject is any factual situation containing any foreign element; and
3.) The primary function of such law is to determine whether the rules of law or
the judgments of some other State or States, and if so, to what extent, should
be recognized or applied in the forum.

The most common example of a case that will necessitate the application of a
private international law is in the making of a last will and testament.
We have learned in our past subjects the several rules governing the execution
and probate of a will and its legal consequences depending on the nationality of
the testator, the situs of property involved and the kind of will executed. Conflict
of Laws comes into play when the issue before the court, lets say in the
Regional Trial Court here in the Philippines, involves some fact or event (the
making of a will) that is so connected with the system of law of another State
(when a US citizen executes a will in the Philippines) as to necessitate recourse
to that system. (Whether or not to apply American Laws or Philippine laws.)

So lets say ABC Corporation is a trading company in Germany and entered into a
business transaction with XYZ Corporation, a manufacturing company here in the
Philippines. Party of their contract is the obligation of XYZ Corp to manufacture
several products of ABC Corporation but the latter failed to comply with its
contractual obligations. Now ABC Corporation wants to seek relief in the Philippine
courts to enforce the contract.
In these case, it already involves several issues that will necessitate the application
of private international law. Why? You have to look into the presence of the
elements of a Conflict of Law case.
1. Is there a legal problem involving a foreign element or a case having a factual
situation that cuts across territorial lines and is affected by the diverse laws
of two or more States? YES! Since it involves a foreign and a domestic
corporation. The German corporation and the Philippine Corp.
2. Will the situation require the application of the rules of law or judgment of
some other State? And if so, to what extent? Now the answer to this question
will depend on whether or not our laws contain a provision that involves
foreign corporations and its right to sue or be sued here in the Philippines.
Let us take for example some provisions governing private corporations under the
Corporation Code. It provides that:
Sec. 123. Definition and rights of foreign corporations. - For the purposes of this
Code, a foreign corporation is one formed, organized or existing under any laws
other than those of the Philippines and whose laws allow Filipino citizens and
corporations to do business in its own country or state. It shall have the right to
transact business in the Philippines after it shall have obtained a license to transact
business in this country in accordance with this Code and a certificate of authority
from the appropriate government agency. (n)
Can you consider this applicable to the situation above mentioned? It will also
depend. The court will have to decide if the foreign corporation validly complied
with. If not, then the foreign corporation cannot seek relief in our courts because the
same law provides that:
Sec. 133. Doing business without a license. - No foreign corporation transacting
business in the Philippines without a license, or its successors or assigns, shall be
permitted to maintain or intervene in any action, suit or proceeding in any court or
administrative agency of the Philippines; but such corporation may be sued or
proceeded against before Philippine courts or administrative tribunals on any valid
cause of action recognized under Philippine laws.
So what are the functions of conflict of laws?
E. FUNCTIONS OF CONFLICT OF LAWS
The functions of Private International Law is threefold:

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; and
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.

F. DISTINGUISHED FROM PUBLIC INTERNATIONAL LAW

BASIS

CONFLICT OF LAWS
(Private IL)
National, municipal or
local in character
Dealt with by private
individuals;
governs
individuals in their private
transactions
which
involve a foreign element

Nature
Persons Involved

Transactions Involved

Private
between
individuals.

Remedies
Sanctions

Resort
to
tribunals

and

transactions
private

municipal

LAW
OF
NATIONS
(Public IL)
International in character
Sovereign
states
and
other entities possessing
international personality,
e.g.
United
Nations,
governs states in their
relationships
amongst
themselves.
Generally
affected
by
public interest; those in
general are of interest
only to sovereign states.
May
be
peaceful
or
forcible:
PEACEFUL:
includes
diplomatic
negotiation,
tender and exercise of
good offices, mediation,
inquiry and conciliation,
arbitration,
judicial
settlement
by
ICJ,
reference
to
regional
agencies.
FORCIBLE:
includes
severance of diplomatic
relations,
retorsions,
reprisals,
embargo,

Sources

Generally derived from

the internal law of the
state; except any conflict
of law question governed
by treaty.

boycott, non-intercourse,
pacific
blockades,
collective
measures
under the UN Charter,
and war.
Custom,
treaty
and
general principles of law,
recognized by civilized
nations
and
juridical
decisions and teachings
of
the
most
highly
qualified publicists.

G. DOMESTIC LAW VS INTERNATIONAL LAW

BASIS
SCOPE

DOMESTIC LAW
Imposed in a
country

RECOGNITION

Only within the country

PURPOSE

Peace of
country

the

single

state

or

INTERNATIONAL LAW
A common law imposed
in different states or
countries
Recognized by different
states and countries
Peaceful
relations
between countries and
states.