CHOICE OF LAW

QUESTIONS THAT CHOICE OF APPLICABLE LAW SEEKS TO ANSWER:

1. What legal system should control a given situation were some of the significant facts
occurred in two or more states?
2. To what extent should the chosen system regulate the situation?

CHOICE OF LAW THEORIES

A. Traditional Approach – which emphasize the principles of simplicity, convenience

and uniformity.
B. Modern Approach – which relate to “reaching appropriate results in particular
cases”

A. TRADITIONAL APPROACHES

1. Vested Rights Theory

- Courts enforce not the foreign law or foreign judgement but the right/s
vested under such law or judgement.
- Rights acquired in one country must be recognized and legally protected in
other countries.
- The forum will not apply the foreign law but will simply recognize the right
vested by said law.

2. Local Law Theory

- This involves the appropriation of a foreign rule by the State of the forum
and transforming it into a domestic rule.
- A foreign law is applied because our own law, by applying a similar rule,
requires us to do so, as if the foreign law has become a part of our own
internal or domestic law.
- Article 16 of paragraph 2 of the Civil Code requires the application of the
national law of the deceased in the matter of his testate or intestate
succession.

3. Theory of Justice
- Caver’s Principles of Preference
- The thesis of Prof. David F. Cavers’ article entitled “A Critique of the Conflict
of Laws Problem” was that choice of law should be determined by
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 “considerations of justice and social expediency” and should not be the
result of mechanical application of the rule or principle of selection.
- The defect in this theory is that different persons have different ideas of
what is just.

B. MODERN APPROACH

1. Place of the Most Significant Relationship

- In contract cases, the factual contacts include (a) the law chosen by the parties
and in the absence thereof; by (b) the place of the contracting; (c) the place of
negotiation of the contract; (d) the place of performance; and (e) the
domicile, residence, nationality, place of incorporation and place of business
of the parties.

C. OTHER APPROACHES

1. Theory of Comity

- Comity is the recognition which one nation allows within its territory, to the
legislative, executive, or judicial acts of another nation, having due regard to
both international duty and convenience and to the rights of its own citizens,
of other persons who are under the protection of its laws.

- The application of foreign legal systems in cases involving foreign element is

proper, otherwise, the non-application would constitute a disregard of foreign
sovereignty or lack of comity towards other States.

2. Harmony of Laws Theory

- Identical or similar problems should be given identical or similar solutions,

thus resulting in harmony of laws.

- The application of the same or similar solution prevents the bad practice of
forum shopping.

Note : These theories do not exclude each other; perhaps, the combination thereof may
lead to a better choice of law.

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FOREIGN LAW EFFECT

General Rule: Foreign law has no extraterritorial effect;

Exception: Consent of the nation.

In accordance with this principle, a foreign law may have no extraterritorial

effect in the Philippines, except when there has been consent, expressly or impliedly,
thereto by the latter.

The consent to the extraterritorial application of a foreign law in our country

may be expressly given through:

1. Form of local law adopting a foreign law like U.S Carriage of Sea Act;

2. Pointing to a foreign law as applicable law like Article 17 of Civil Code

prescribing the law governing the form and solemnities of contracts or
wills where they have been executed;

3. Treaties adhering International Convention like Warsaw Convention.

The consent to the extraterritorial application of a foreign law in our country

may be impliedly given through the observance of the principles of comity.

CHARACTERIZATION

Before a choice of law can be made, it is necessary to determine under what category a
certain set of facts or rules fall. The process is known as “characterization,” or the “doctrine of
qualifications.”

It is the process of deciding whether or not the facts relate to the kind of question
specified in a conflicts rule. The purpose of characterization is to enable the court of the forum
to select the proper law.

Example: A practicing lawyer always makes a characterization when he is retained as

lawyer in a case. He assembles and analyzes the facts, and decides under what cause of action,
such as for damages, specific performance, for a sum of money etc., may be categorized. Then
he decides which law is applicable.

Conflict between foreign law and local law; the latter prevails.