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Aldrin Mark M. Quintana CEU-3JD Essay on Conflict of Laws

Atty. Lemuel D. Lopez

Private International Law and the Law on Jurisdiction Private International Law is in fact a domestic law which deals with cases where foreign law intrudes in the domestic sphere when there are questions as to the applicability of foreign law or the role of foreign courts in relation to States domestic legislations. 1 The concern of private international law is to harmonize the rules of public international law and the domestic law and in terms of conflict, it provides for the remedy in which a person may use to enforce his rights. Since the generally accepted public international law although incorporated in a constitution through an incorporation clause2 the same laws are not per se binding until it passes the doctrine of transformation, it provides that generally accepted principle of public international law must be embodied in a municipal or domestic legislation enacted by the lawmaking body, execution of laws by the executive department or interpretation incorporated by the judiciary as part of the stare decisis principle3 of a sovereign State before such State may be obliged to observe its full application.4 Some of the public international laws subject to this transformation may be international agreements, conventions or treaties or judicial decisions of International Courts or Tribunals. The mainstream issue arising from the study of this private international law is the conflict of laws resulted from incorporation or transformation and the primordial consideration pertains at all times to the question of jurisdiction and choice of law. Jurisdiction is derived from the Latin terms juris and dico which means I speak of the law.5 It is the power and authority of the court to hear, try and decide a case, and

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Introduction to Public International Law, Joaquin G. Bernas, S.J., 2009 Ed., Rex Book Store, Manila, p. 4 In the 1987 Philippine Constitution it is expressly st ated in Section 2 of Article II, The Philippines as a State adopts the generally accepted principles of international law as part of its domestic law and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations . 3 Judicial decisions applying or interpreting the laws or the Constitution shall form a part of the legal system of the Philippines. Article 8 of the Civil Code. 4 International Law, Isagani A. Cruz, 2003 Ed., Central Book Supply Inc., Quezon City, p. 6. 5 People vs. Mariano 71 SCRA 600.

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apparently, it does not depend either upon the rightfulness of the decision made.6 The necessity of jurisdiction is founded on the constitutional guaranty of access to courts which refers to courts with appropriate jurisdiction as defined by law. It does not mean that a person can go to any court for redress of grievances regardless of the nature or value of his claim.7 Jurisdiction is defined and conferred by law and that parties cannot by their will stipulate or fix, waive, enlarge, diminish the jurisdiction of the court.8 In international law, the basic principle of jurisdiction is that, State does not have jurisdiction in the absence of some reasonable basis for exercising it. To be reasonable, the jurisdiction must be based on some minimum contacts that will not offend traditional notions of fair play, substantial justice or the very essence of due process.9 Jurisdiction may be acquired over the subject matter of the controversy or nature of the action, which is conferred by law, over the person of the plaintiff or defendant or over the res or property. Conflicts case arise where the factual antecedents satisfactorily establish the existence of a foreign element, there is the presence of the foreign element where a factual situation that cuts across territorial lines and is affected by the diverse laws of two or more states.10 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 contract between nationals of one State involves properties situated in another State. In other cases, the foreign element may assume a complex form.11 In these cases of conflicts, the courts are called to pass upon the question of jurisdiction and consider the principles that would eradicate miscarriage of justice. Pragmatic consideration is one, including the convenience of the parties and the private interest of the litigant. A party may not, by choice of an inconvenient forum, 'vex', 'harass', or 'oppress' the other party, e.g. by inflicting upon him needless expense or disturbance. But unless the balance is strongly in favor of both parties, choice of forum should rarely be
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Century Insurance Co., vs. Fuentes, 2 SCRA 1168. Remedial Law Vol. 1, Oscar M. Herrera , 2007 Ed. Rex Book Store, Manila, p. 71, citing, Santos III vs. Northwest Airlines, 210 SCRA 256, 1992. 8 Municipality of Sogod vs. Rosal, 201 SCRA 632, 1991. 9 Hong Kong and Shanghai Banking Corporation vs. Serman, 176 SCRA 331. 10 Saudi Arabian Airlines vs. CA et al., October 8, 1998. 11 Salonga, Private International Law, 1995 edition, p. 3.

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disturbed.12 As to the choice of applicable law, choice-of-law problems seek to answer two important questions: (1) What legal system should control a given situation where some of the significant facts occurred in two or more states; and (2) to what extent should the chosen legal system regulate the situation.13 Several theories have been propounded in order to identify the legal system that should ultimately control. Ideally, all choice-of-law theories should intrinsically advance both notions of justice and predictability. The forum is faced with the problem of deciding which of these two important values should be stressed. Justice Leonardo A. Quisumbing of the Philippine Supreme Court as ponente of the case of Saudi Arabian Airlines vs. CA et al., October 8, 1998, clearly established a rule to determine the applicable law in terms of conflict between domestic and foreign law. He opined, Before a choice can be made, it is necessary for us to determine under what category a certain set of facts or rules fall. This process is known as characterization, or the doctrine of qualification. 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 forum to select the proper law. The starting point of analysis is not a legal relation, but a factual situation, event, or operative fact. An essential element of conflict rules is the indication of a test or connecting factor or point of contact. Choiceof-law rules invariably consist of a factual relationship, such as property right, contract claim, and a connecting factor or point of contact, such as the situs of the res, the place of celebration, the place of performance, or the place of wrongdoing, in cases of torts. Test factors or points of contact or connecting factors could be; The nationality of a person, his domicile, his residence, his place of sojourn, or his origin;
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Saudi Arabian Airlines vs. CA et al., October 8, 1998. Coquia and Pangalangan, Conflict of Laws, 1995 edition, p. 65, citing Von Mehren, Recent Trends in Choice-ofLaw Methodology, 60 Cornell L. Rev. 927 (1975).

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The seat of a legal or juridical person, such as a corporation; The situs of a thing, that is, the place where a thing is, or is deemed to be situated. In particular, the lex situs is decisive when real rights are involved; The place where an act has been done, the locus actus, such as the place where a contract has been made, a marriage celebrated, a will signed or a tort committed. The lex loci actus is particularly important in contracts and torts; The place where an act is intended to come into effect, e.g., the place of performance of contractual duties, or the place where a power of attorney is to be exercised; The intention of the contracting parties as to the law that should govern their agreement, the lex loci intentionis; The place where judicial or administrative proceedings are instituted or done. The lex fori the law of the forum is particularly important because, as we have seen earlier, matters of 'procedure' not going to the substance of the claim involved are governed by it and because the lex fori applies whenever the content of the otherwise applicable foreign law is excluded from application in a given case for the reason that it falls under one of the exceptions to the applications of foreign law; Lastly, the flag of a ship, which in many cases is decisive of practically all legal relationships of the ship and of its master or owner as such. It also covers contractual relationships particularly contracts of affreightment. Conflict of laws are resolved for the benefit of every party and a State may not choose to act unilaterally without violating the principle of due process which is applicable not only to its citizen but to every person within its territorial limits. The law also gives ample protection to every person as mandated by the observance of the equal protection of laws. These, due process and equal protection of laws are recognized not only by the municipal or domestic law but these principles are considered as part of jus gentium. The role of determining the applicable law in times of conflict is founded always on the end that justice will prevail.
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