Introduction to Private International Law: A Summary

International law, being that branch of law that deals with the relationship of states as
well as the relationship of individuals of different states, is divided into two branches – public
international law, which governs the relationship of states and international entities and private
international law, which deals with conflict of laws among the laws of two or more states and
necessitates a determination of which municipal law applies to a case. As to source, the former
is based on international conventions, international custom, the general principles of law
recognized by civilized nations and judicial decisions and the teachings of the most highly
qualified publicists of the various nations, while the latter is based on domestic and municipal
laws, which includes the constitution and statutes adopted by individual countries. As to
subjects, public international law has states and international organizations while private
international law has individuals and corporations.

In Abdullahi v. Pfizer which had the issue of whether there was violation of international
law on non-consensual medical experimentation, extensively examined the ripening of such
prohibition into a customary international law norm that is universally accepted, sufficiently
specific, and of mutual concern. As to its universality, history illustrates that from its origins with
the trial of Nazi doctors at Nuremburg through its revolution in international conventions,
agreements, declarations and domestic laws and regulations, the prohibition has become firmly
embedded and has secured universal acceptance in the community of nations. As to its
specificity, the uniform and unmistakable prohibition on such experimentation without the human
being’s consent provides concrete content for the norm. As to mutual concern, states not only
acted independently to outlaw non-consensual drug testing on humans but have also acted in
concert to do so, through express and binding international agreements like the ICCPR and the
Convention on Human Rights and Biomedicine. Also, the dismissal on the ground of forum non
conveniens is not appropriate if an adequate and presently available alternative forum does not
exist, and absent a showing of inadequacy by a plaintiff, considerations of comity preclude a
court from adversely judging the quality of a foreign justice system.

In Saudi Arabian Airlines v. Court of Appeals, it was explained that the concept of foreign
element is “a factual situation that cuts across territorial lines and is affected by the diverse laws
of two or more states”, and that it is the most important component of a conflicts of law problem.

Jurisdiction, choice of law, and recognition and enforcement of judgments are the three
phases in conflicts resolution which are important in determining the applicable theories of law
as well as the defenses available, as exhibited in Hasegawa v. Kitamura. The principles of lex
loci celebrationis, lex loci contractus and the state of the most significant relationship rule are
improper grounds for questioning the jurisdiction of the court as these make reference to the law
applicable to a dispute. Since the RTC decided to assume jurisdiction based on its sound
discretion, the raised ground of forum non conveniens cannot deprive the court of such.

To determine the applicable law, identification of the issue in the problem and spotting
the legal issues as presented by the facts of the case is necessary (characterization), and an
analysis is made with respect to which jurisdiction or fora has the most connection to the case
(connecting factors). However, it is to be noted that according to Article 1306 of the Civil Code,
“the contracting parties may establish such stipulations, clauses, terms and conditions as they
may deem convenient, provided they are not contrary to law, morals, good customs, public
order or public policy”.

Laws, being generally territorial in application, can also be extraterritorial when so

provided by legislature. Examples of such laws, whichare contained in the Civil Code, are Article
15 which relates to family rights and duties, or to status, condition and legal capacity of persons,
and Article 16 which deals with real and personal property.

In Small v. United States, it was elucidated that in determining the scope of statutory
phrases, the legal presumption is that Congress ordinarily intends its statutes to have domestic,
not extraterritorial, application. It is also reinforced in Kiobel v. Royal Dutch Petroleum Co. that
when a statute gives no clear indication of an extraterritorial application, it has none.

The defense of forum non conveniens, which means that the forum is not convenient or
that the place where the suit is filed has no substantial connection to the parties or to the
dispute that it becomes very inconvenient to litigate such suit in the chosen venue, is usually
interposed by way of a motion to dismiss. In Saudi Arabian Airlines v. Rebesencio, et al., the
considerations for assumption of jurisdiction by Philippine tribunals have been satisfied – that all
the parties are based in the Philippines and all the material incidents transpired in this
jurisdiction, that said tribunals are in a position to make an intelligent decision as to the law and
the facts, and that the tribunals are in a position to enforce their decisions. The invocation of
forum non conveniens by the defendant finds no application and does not operate to divest the
Philippine tribunals of jurisdiction and to require the application of foreign law.

RICHARD L. CHICO

LLB-III BC Law