History of the Conflicts of Law

Jus Gentium in Roman Law

• General conception: Roman Law is Private Law (Jus Civile).

• Conquered people were not allowed to utilize the Jus Civile.
• Were made to use their own customary law.
• Problem arose when dealing with Romans.
• Because of its goal of expansion, Jus Gentium was adopted.
• Jus Gentium means “common to all mankind”
History of the Conflicts of Law
Jus Gentium in Roman Law

• Praetor Peregrinus was introduced: A magistrate specifically for

foreigners.
• The praetor was allowed to create edict as it wished, free from the
rules of the Civil Law. Thus, Jus Gentium became more perfect.
• Jus Gentium was then used by the Romans and the difference
between the two vanished.
History of the Conflicts of Law
Post-Roman Era

• After the Roman Era has fallen, laws became personal again.
• Charlemagne restored the Roman Law to unite Europe.
• Renaissance era: scholars throughout Europe adapted Jus Gentium
and translated it into their own language.
• in Italian, "diritto delle genti"; French, "droit des gens"; German,
"Volkerrecht"; and English "Law of Nations."
• The role of the Church had finally diminished
History of the Conflicts of Law
Post-Roman Era

• In the 17th century, Hugo Grotius, the “father of international law”

wrote his masterpiece “The Law of War and Peace” in which he
described the law of nations as customary law established by the tacit
agreement of all or a majority of nations.
History of the Conflicts of Law
Modern Developments of Private International Law

• Distinction between Jus Gentium Privatum and Jus Gentium

Publicum.
• British Lawyer Lord Nichols of Birkenhead defined Conflicts of Law as
“jurisprudence concerned essentially with the just disposal of
proceedings having a foreign element. The jurisprudence is founded
on the recognition that in proceedings having connections with more
than one country an issue brought before a court in one country may
be more appropriately decided by reference to the laws of another
country even tough those laws are different from the law of the
forum court.”
History of the Conflicts of Law
Modern Developments of Private International Law

• 19th and 20th century: Ratification of several conventions and

protocols
• Rome Convention of 1980
• first step towards unification and codification of general rules of conflict of
laws in the field of civil law in the European Community
• Although the ratification was exclusive of European member-states, the
convention was open for adaptation by non-members states.
• The Rome convention favors the choice of law principles wherein contracts
will be governed by the laws chosen by the parties.
History of the Conflicts of Law
Modern Developments of Private International Law

• European Law vs. American Law

• American courts use the rule-selection technique wherein the court examines
the particular rules of law and chooses which legal system should be applied.
History of the Conflicts of Law
Modern Developments of Private International Law

• Hague Conference on Private International Law, to which the Philippines is

a signatory.
• Multilateral convention on jurisdiction, recognition and enforcement of foreign
judgments in civil and commercial matters.
• Recognized party autonomy as the main determination on which legal system
should be applied when conflict arises between contracting parties.