F. Harrison, Jurisprudence and the Conflict of Laws (1919). ‘W. Johnson, Conflict of Laws, by W. S. Johnson (2d ed., 1962). A. K. Kuhn, Comparative Commentaries on Private Intemational Law as37), R.C. Minor, Conflict of Laws (1901). JH. C. Morris, Cases on Private International Law (1968); The Conflict of Laws (1971). A. Nussbaum, Principles of Private Intemational Law (1943). R. Phillimore, Commentaries on Private Intemational Law or Comity, vol. IV Grd ed., 1889). E. Rabel, The Conflict of Laws: A Comparative Study (4 vols., 1945, 1947, 1950, 1958). HE. Read, Recognition and Enforcement of Foreign Judgments (1938). _ A.HL Robertson, Characterization in the Conflict of Laws (1940). CM, Schmitthoff, A Textbook of the English Conflict of Laws (1954). E. F. Scoles and Peter Hay: Conflict of Laws (1982) with, 1988-1989 ‘Pocket Part. J. Story, Commentaries on the Conflict of Laws (1834, 8th ed. by Bigelow, 1883). G. W. Stumberg, Principles of Conflict of Laws (3rd ed., 1963) R. J. Weintraub, Commentary on the Conflict of Laws (1971). W. Westlake (and Bentwick), A Treatise on Private Intemational Laws (Tthed., 1925). F, Wharton, A., Treatise on the Conflict of Laws (2 vols., 1905). CHAPTER I NATURE, DEFINITION, AND SCOPE ~ OF THE SUBJECT A. How Problems in Conflict of Laws Arise ‘The phenomenal advances in the field of communication and transpor- tation, the frequency and variety of events and transcctions that cut across national and territorial boundaries, and the diversity of legal systems pre~ vailing in the world, have made Private Intemational Law or Conflict of Laws, as the subject is known in the United States and Canada, more im- portant than it was many years ag6. Ifthe world were only one State, govemed by ony one set of rules, and administered only by one central Govemment, there would be no such sub- ject as Conflict of Laws or Private Intemational Law. Even if the world were divided, as itis today, into different States or territorial units, if every State or unit had identical rules of law, uniformly * applied and administered, there would beno occasion for the subject to start, off and develop. “The fact, however, is that one hundred eighty-five States of the world (as of May 1995) have diverse and separate systems of law. To complicate the situation, there are some States, such as the United States and the United Kingdom, where various territorial units are governed by different rules of law. A divorce obtained in Nevada may be considered ineffective in South Carolina; a contract valid under the law of Arkansas may be considered void in New York. Any situation, event, or transaction that cuts across state lines may give rise to a problem in Conflict of Laws or Private Intemational law. Where persons or things are not involved in any kind of intemational trade or inter= course, no conflicts problem may occur. Thus, if Bayani de la Cruz and Maria Liwanag, both Filipino nationals, many in the Philippines, accumu- Tate properties in the Philippines, and—out of their marriage—children are ‘bom in the Philippines, any legal problem conceming their marriage, their2 PRIVATE INTERNATIONAL LAW properties, or the legitimacy of their children, is simply and immediately solved by the application of intemal Philippine law. But if Bayani de la Cruz, residing in San Francisco, California, marries Ann Tar"9r, an American na- tional from Pennsylvania, with whom three children are bom, and some ‘years later, he succeeds in obtaining a “no fault” divorce from her in Reno, ‘Nevada (representing that they had been living apart for 5 years), anumber of questions may arise, to wit: What law govems the capacity of Bayani de la Cruztto marry Ann Taylor—Philippine law, California law, or Pennsylva- nia law? What law governs their matrimonial property relations? How about the inheritance rights of the three children—by what law shall their succes sional rights be regulated? Is the Nevada divorce valid in the Philippines? Allthese questions fall within the realm of Conflict of Laws or Private Inter- national Law. ‘To summarize, problems in the Conflict of Laws arise due to the con- ‘currence of two factors: (1) the division of the world into different States or territorial units, each State or unit having a different system of law; and (2) the presence of a situation containing a foreign element, that is to say, an ‘event or transaction affected by the diverse laws of two or more States or J. The diversity of laws ‘Why should the various legal systems have different rules? This ques- tion brings us to the complex study of the evolution of law. Anthropological ‘esearch has shown that various nations and races havenot 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, including what the ruling class or group thought was neces- Sary to protect its own interests.’ Each State or territorial unit has its own. rules dealing with the same aspects of human existence—birth, personality, filial relations, marriage, separation, divorce, property, contracts and trans- actions, business associations, inheritance, and so forth. These matters are usually dealt with differently in each legal system. ‘Gee Paton, Tusisprudeace (2nd ed. 1951) Chapter I; for a philosophical discussion of the historical origin and nature of law, seo I Savigny, Sysiem of the Modern Roman Lav, (Chapter IL The theory of economic determinism holds that legal rules are merely a reflection ‘af the economic base on which the life of the community is built. ‘NATURE, DEFINITION AND SCOPE 3 For instance, under Japanese law, absolute divorce by mutual consent of the spouses is relatively easy. In the United States today, Nevada and California display the most liberal attitnde in the granting of divorce de- cxees, Inthe Philippines, however, there is still araging debate as to whether the present prohibition against absolute divorces should be retained or not. Likewise, inthe field of intemational business, Cuba has insignificant prob- Jems with foreign investments and multinational corporations, since it does not allow foreign interests to dominate its economy. Such problems, how ever, exist in many’ countries of the Third World, including the Philippines, ‘where foreign investors are encouraged to come ini and engage in business. 2. A situation involving a foreign element ‘A factual situation that cuts across territorial lines and is affected by the diverse laws of two or more States is said to contain “a foreign element.” ‘The presence of a foreign element is inevitable since social and economié affairs of individuals and associations are rarely confined to the geographic limits of their birth or inception. Every time a Filipino national marries an alien, each time apperson travels abroad by taking aplae or a boat, or when- ever a local businessman concludes a business deal with a firm in Japan, Hongkong, the United States, the Middle East or Westzm Europe—whether by correspondence, cablegram, telephone, fax machine or videophone—a host of problems in Conflict of Laws may possibly atise. So is any case in which the facts occur in one State but the suit is brought in another, so that the latter (the forum) must decide between its own law and the law of the place where the events occur. ‘The forms in which this foreign element may appear are many? The foreign element may simply consist in the fact that ane of the parties to a ‘contract is an alien or has a foreign domicile, or thet a contract between nationals of one State involves properties situated in mother State. In other cases, the foreign element may assume a complex form. Global Electronics ‘America, based in New York, incorporates and establishes a subsidiary in the Philippines, under Philippine law. The latter is now doing business un~ der the firmname, “Global Electronics Philippines.” Assume that the parent company in New York owns 51% of the capital stock of the subsidiary, that “Cheshire and North, Private International Law, p. 5 by PPA. North and J.J. Faweett ‘Butterworths, Loudon, 1992). For convenience, the book will be cited simply as Cheshire ‘and North4 PRIVATE INTERNATIONAL LAW the balance of 49% is owned by Filipino citizens, and that the same propor- tion is reflected in the composition of the Board of Directors, A number of interesting questions may arise from its day-to-day operations: (1) What Jaw govems the purchase by the subsidiary of electronic appliances and instruments from its parent company? (2) What law govems the legality of royalties paid by the subsidiary for technology introduced by the parent com- ‘pany? (3) What law govems the day-to-day transactions between the sub- sidiary and domestic firms? (4) What law govems the declaration of divi- dends by Global Electronics Philippines? (5) Would it make any difference if the parent corporation were Japanese, based in Tokyo with the same pro- portion of capital stock ownership? Hence, cases in Conflict of Laws or Private Intemational Law may involve a variety of problems, ranging from the simplest to the most complex. B. Definition With the above observations, the various definitions of Private Intema- tional Law or Conflict of Laws may be properly evaluated. ‘The earliest works published in the Philippines on the subject adopt the following definition of Minor: - “Private Intemational Law embraces those universal principles of right afd justice which govern the courts of one state having be- * fore them cases involving the operation and effect of the lavis of another state or country.”? ‘This definition contains two assumptions: (1) that rules of Private Inter- national Law are universally the same, and (2) that they are based on prin- ciples of right and justice prevailing everywhere. The first is erroneous for, 2s will be pointed out shortly, Private Intemational law today is national law. Philippine rules of Conflict of Laws are wholly distinct from those of Cali- fornia, Germany, or Japan.* ‘The second assumption is debatable. As the gxeat German jurist, Savigny, wamed long ago, one should always be on ‘guard against holding his juridical notions as the offspring of right, pure reason, or natural justice and considering them as common to human nature in general.’ A great deal of what the Romans considered universal many °Minor, 4. See Eagene F. Scoles and Peter Hay, Conflict of Laws (West Publishing Co., 1982), 1. For convenieace, the book will be cited as Scolee and Hay. Ssavigny, On the Vocation of Our Age for Logisation and Tursprudence, 24-136, NATURE, DEFINITION AND SCOPE. 5 ‘centuries ago, such as the institution of slavery, is teday considered a mere ‘accident of the particular conditions in which Roman Law was developed ® Be that as it may, there does not exist a considerable body of universal prin~ ciples upon which a truly intemational private law may be based, What exist are national rules of Conflict of Laws or Private Intemational Law. © Westlake defines the subject, thus: “Private In:eriational Law is that departmapit of private jurisprudence which determines before the courts of ‘what nation each suit should be brought, and by the law of what nation it should be decided.”” There is in this definition exclusive emphasis on the role of courts to decide problems in Private Intemational Law. This is quite inaccurate. From day to-day, administrative agencies and officials, foreign offices and legations, find it necessary to decide many problems in Conflict of Laws. - Judgé Goodrich describés Conflict of Laws as “that part of the law which deals with the extent to which the law of a state operates and deter ‘mines whether the rules of one or another state should be applied in a legal situation. A conflict of laws problem is presented whenever a legal contro- versy arises in which there is a foreign element.”* ‘Tne Second American Restatement defines Coaflict of Laws as “that ‘part of the law of each State which determines what eect is given to the fact that the case'may have a significant relationship to more than one State,” One of its foremost critics, Prof. Braivierd Currie, defines it as “that branch of law designed to deal with conflicts between the interests of two or more States in applying the policies embodied in their respective laws.” We shall see the implications of these definitions later For our purposes, we shall adopt the following definition: Private Jn- ternational Law or Conflict of Lav's is that part of the law-of each Siaie ; : \ \ Pain, A Tentbook of Fuisrudence ad od. 1951), 808). ps 2Westnke, Ie ed. 1858, 1. "Goodrich (Scles, 1. The fourth edi (1964) af tii'tok was prepared by Prof Eugene F Soles. In 1982, Prof. Scoles and Dean Peter Hay pubihed thes book, Conflie of Laws (Hombook Sevios. Wost Publishing Co), hereinafter cited simply as Seoles and Hay. ‘section 2. Tho Second Restetemont was adopted and proinulgated by the American Law lasitute at Washington, D.C. on May 23. 1969. To ditinguish it from the American Restatement of Confit of Law, it wil be cited hor ar Restatement, Second. “Cuntie, The Disinterested Third State, 28 Law and Conteiapotary Problems, 754, 756 (1963). i » *6 PRIVATE INTERNATIONAL LAW which determines whether in dealing with a factual situation involving a foreign element, the law or judgment of some other State will be recog- nized or applied in the forum." ‘Three points may be noted in this definition: first, Private Intemational Law is merely apart of the municipal law of each State; second, the subject is any factual situation containing any foreign element; and third, thie pri- mary function of this department of law is to determine whether the rules of law or the judgments of some other State or States, and ifso, to what extent, should be recognized or applied in the forum. Conflict of Laws comes into play when the issue before the court or agency of one State involves some fact, event, or transaction that is so connected with the system of law of another State as to necessitate recourse to that system. Private Intemational Law is not a separate, distinct branch of law in the same sense 2s “persons and family relations”, “property”, “torts”, “obliga- tions and contracts”, or “private corporations”. Nor is ita part or branch of Civil Law, Private Intemational Law traverses and concems almost every department of law; it cuts across all subjects identified with law. As de- scribed by one writer: ‘It starts up unexpectedly in any Court in the midst of any pro- cess... The most trivial action of debt, the most complex case of equi- table claims, may be suddenly interrupted by the appearance of a knot to be untied only by Private Intemational Law.” For example, in a simple suit instituted in the Regional Trial Court of ‘Manila by Citibank (Manila) for the collection of a contractual debt against Juan Makabayan, the latter, in his answer, questions the applicability of Phil- ippine law on the ground that the contract wes made and perfected in New York, though concededly he (Fuan Makabayan) accepted the said offer in Manila. Makabayan alleges that the contract is void under New York law and should not be enforced in the Philippines. The Regional Trial Court is obviously confronted by a difficult problem in Conflict of Laws in what, on the basis of the complaint, appeared to be a simple collection suit. TCE the definition of Restatement, First, soc 1 (2). Cheshire and North, $; Graveson (1974), 3-6. tiarison, Suspmudence andthe Conflict of Laws, 101-102 ‘NATURE, DEFINITION AND SCOPE C. Function and Object of Conflict of Laws Where a contract entered into by Pedro Martinez, a Filipino business- ‘man, with a Japanese trading company in Tokyo, Jepan, complies with the formal requisites presctibed by Japanese law but falls short of the requisites. laid down by the law ofthe Philippines—the place where the principal obli- gation of the contract is to performed—in a case brought by Martinez before ‘the Regional Trial Court, which puts in issue the validity of the contract, the followin questions will inevitably confront the cout: (@) whether it should entertain the case or not; (b) whether, in the event jurisdiction is assumed, it should apply for- ign law, that is Japanese law, and (©) In ease there is a previous judgment by a Japanese court on the same matter, involving the same issues and the same parties, whether to recognize the judgment in the Philippines, Ithas, therefore, been stated that the function of Private Intemational Law is threefold: to prescribe the conditions under which a court or agency is competent to entertain a suit or proceeding involving facts containing a foreign element; to specify the circumstances in which foreign judgment will be recognized as valid and binding in the forum: end lastly, to determine for each class of cases the particular system of law by reference to which the rights of the parties must be ascertained.'* Itis the ast fumction that involves the fundamentel problem of choice of Jaw, For it is the primary function of Private Intemational Law to determine which of several simultaneously valid legal systems is applicable to a given set of facts.'* ‘There are four points in this statement which are important: 1, Rules of Private Intemational Law, like all other rules of law, apply ‘only to certain given facts not characterized as creating some legal relation- ship. Only a legal system can determine whether 2 given set of facts has produced any legal relationship ornot and itis for Pr-vate Intemational Law to choose the appropriate system by which said fads may be determined. Let us discuss a concrete case. ‘Where and North, 3. Wolt, 4-6, Sg8 PRIVATE INTERNATIONAL LAW ‘TEtwo persons, a Filipina and an American soldier from Califor- nia, go through a marriage ceremony before a Japanese priest in To~ kyo, we cannot readily say that there is a valid marriage, that is,-a validly created legal relationship between the two. The answer to this question will depend on what law we apply. What exists before this is done is merely a factual situation or event, i.e., a ceremony before a ‘Japanese priest. Assuming that Japanese law is the proper law to be applied, and this law, we discover, considers the factual situation as having created a legal relationship bebween the two, then and only’ then can we consider that a valid marriage has'been contracted. 2. Thé selection of legal systems open to the court is-limited to.those that are simultaneously valid. In the above example, a Philippine court may decide to select any of the three legal systems, that might properly apply: Japanese law, California law, or Philippine law. ‘The choice of legal systems is limited only to those legal systems pre- vailing in different countries or States, or in different parts of one State. The ‘ast part ofthe preceding sentence needs a brief explanation. On account of the Federal system of govemment obtaining in the United States, and the doctrine of state sovereignty, interstate problems in Private Intemational Law are a common occurrence. If a Califomia matron should enter into a con- {tract of mortgage covering a land in Indiana with a party in New York, the ‘contract having been perfected by exchange of telegrams, a conflict of laws problem can easily arise. The Califomia matron may, by Indiana law, be disqualified to enter into such contract without obtaining her husband's con- sent, although she may be capable’ of doing so under California law, The question then would be as to what law should prevail in the eventher c@pac- ity to enter info the contract is put i dispute, 3, The legal effects of @ Certain set of facts are not always determined by one single legal system, It is sometimes nécessary to. apply several sys- tems, either cumulatively of altematively. ‘Cunnutative application: (1) A given set of facts may produce legal effects each of which is govemed by a different legal system. For example, if two French nationals enter into a marriage contract in Manila, the formal validity of that contract will be govemed by Philippine law; but their property relations as husband and wife shall be govemed primarily by French law. (2) Ora given set of facts may produce legal effects only if certain conditions common to two legal NATURE; DEFINITION AND SCOPE 9 systems are fulfilled. For example, an act committed:in'the Philip: pines gives rise to an action for tort in England only if it constitutes a tort according to English law and is not justifiable under the law of the Philippines, the place where it was committed i Alternative application: Under Philippine law, if an alien exe ccutes a will in the Philippines, the formal valid-y ofthe will may be judged altematively by the requirement of interval Philippine law or cof hjs own national law (Article $17, Civil Code). If ether law con- siders it formally valid, it may admitted to probate. ‘Now, the moment the primary function of Private Intemational Law-is discharged by pointing to-the system:or systems of law that will govem a given set of facts, it is said by a good number of writers that there is nothing. more left to be done, as a general rule, but inquire into the disposition of the case under the appropriate system of law. But this, according to the tradi tional view, is no longer within the domain of Private Intemational Law. The function ofthe law is regarded complete when the appropriate system of law hhas been chosen.'* That sytem ofl mast the beprovedacordingtothe rules of evidence. However, it should be pointed out that the objective of Conflict of Laws is not merely to provide a meas of deciding cases involving i foreign elé- ment! Promoting the peaceable intercouirse of private persons, made im- perative by the eccnomic and social ‘demianids' of an interdependent world, through riles that are eminently just aid werkable, nay well be the ultimate objective of Private Intemational Law. Translated into specific policies, this objective calls for the protection of the justified and rational expectations of patties to a transaction, the application ofthe law of the Statehavinig a domi- nant interest in a given set of facts, the promotion of stability and predictabil: ity by achieving uniformity of solution to a case wherever the forum may be situated, and of course, the dispensing of justice in individual cases."” "Says Cheshive and North, 8: “lis rules do not fumish a direct solution of the dispute, and it has boon said by a French writer that this department of law. resombles the inquiry fie atx ray san whore» pasenge my lea te plat at whic his tin stat” Schratisof, 9. "See the instructive discussion of Ehrenzweig, Private Intemational Law, hercinafter cited as Ehrenzweig, Chapter I, pp. 47-107. The practce’a! locating the jurisdiction in ‘which the so-called ‘governing law’ may be found without scrutiny of the content of the ‘law’ except for the purpose ofits spplication has been roundly condemned and labeled as the “divining-rod method.” See, for example, the article of Prof. David Cavers, A'Ciitique of10 PRIVATE INTERNATIONAL LAW D. Name of Subject ‘The most popular titles of the subject‘are Private Intemational Law and Conflict of Laws. Both have been criticized as misleading and, therefore, inaceurate. The first seems to suggest that there are two kinds of intema- tional law; public and private. But in point of fact, Private Intemational Law is not intemational but national law. The second term suggests that all that occurs is a conflict of different laws and legal systems. However, itis pre- cisely the task of this department of law to choose among several systems ‘and thus resolve or avoid conflicts. A good number of names have been suggested by various writers, apparently to. avoid the inadequacies-of the first two. The name: “Intemational Private'Law” is used in some’ part of Continental Europe; Torres Campos of Spain has suggested the title “Extra- territorial Law."* Other waiters have suggested various titles such as “Con- flict of Statutes”, “Transnational and Transmunicipal Law”, or “Law of Multistate Problems” indicating either the'idea of collision of laws or the intemational character of the subject.” Recently, the title “Choice of Law” has made its appearance in a good number of works and manuscripts on the subject, but its inadequacy is obvious since the proper choice of law to gov- ‘em a conflicts problem or situation is, though the most important, only one of the three functions of the subject. At any rate, since Conflict of Laws and Private International Law are of current usage throughout the world; and as no better ttle has been conceived so far, further discussion of aterminologi- cal issue such as this holds no promise of much reward.” The important ihe Choice of Law Problom, 47 Hare LR. (1933) 173-208: cf: Cook, The Logal and Logical Base of the Conflict of Lews; Harper, Ploy Basos of the Conic of Laws: Reflections on Rereading Prof: Locenzen's Essays, $6 Yale LJ. 1155 (1947); Loreazen, SolectedArtcos ‘on the Coaflict of Laws, 20 Can B. Rev. 479 (1042); Rheinstein, the Place of Wrong: A Study inthe Method of Caso Law, 19 TulanoL. Rov. 4 (1944); Cheatham and Reoso, Choice ofthe ‘Applicable Law, $2 Col. LRe. 95°982 (1952); Katzeabach, Conflicts on an Unrily Horse: Reciprocal Claims and Tolerace in Intrtate and Intemational Law, 65 Yale LJ. 1087-1157 (1986) See alo Neos, 72 Har: Law Re (No, 2) 318-28 (1988): Curia, Selected Easy on the Conflict of Law (1963); hrenzweig, Chapter IV. “Pinsipos do derecho intemaion!pvadeo de derecho exter de Esopn y ‘America en sus relaciones com el derecho civil de Epis, (Made, 1883). "From Voets “Conc of Statutes” Vou Mahren & Trautman, The Law of Mulstato Problems: Cases and Materials on Confit of Laws (1965 ed) ethers are Weise’ Civil Inter ‘atonal Lay,” Haus’ Private Law of Nations, Holtad’s Extatntoril Recognition of Rights, ‘NATURE, DEFINITION AND SCOPE u thing is to know and keep in mind the meaning and significance of the term or label one is employing, Ey Distinguished from Public International law * In many countries of the world, and to a great majority of jurists and publicists, the term “Intemational Law” refers to the law that regulates the relations of States and other entities possessing intemational personality, ‘his is elearly the sense in which the term is used in Article 1, Section 2 of the Philippine Cénstitution of 1987 which declares that: “The Philippines renounces war as an instrument-of national _ policy, adopts the generally accepted principles of intemational law 2s part of the law of the land...” ‘As has been explained earlier, there are no universally accepted prin- ciples of Private Intemational Law." Every State bas its own distinctive set of rules of Conflict of Laws. In the language of Cheshire and North: “Private International Law is not the same in all countries. There is no one system that can claim recognition... A writer on Public . International Law may pethaps claim with some justification that the doctrines which he propounds are entitled to universal recognition. ‘Thus, in theory at any rate, a German or a French jurist should agree as to what constitutes an effective blockade, But he who writes on Private Intemational Law can make no such claim. This branch of aw as found, for instance, in France shows many striking. contracts with its English counterpart, and though the English and North Ameri- can rules show considerable similarity, they are fundamentally dif- ferent on a nunibér of points.” ‘The first and most fundamental distinction, therefore, between Public Intemational Law and Private Intemational Law is, tat while the rules of Thor is, however, an ambitious atompt by Prof J.P. Nibeyet toward universal recog- nition of conflicts rules based on the principle of terterality and the complementary prin ciple of international efficacy. Soo Niboyet, Teritoralty and the Universal Recognition of Roles of Conflict of Laws 65 Haiv-L: Rew. (1952) 582. “Chechire and North, p. 9. Even within the United States, not all States follow the same rules in Conflict of Laws. Says Prof. Loreazen: “There are, relatively speahiig, few rules of the Conflict of Laws which can be sad to be recognized by all Anglo-American States, or by the great majosty of them.” (Lorenzen, E. in Tersitovialty, Public Policy and the Conlct of Law, 33 Yale Law Jounal (1924) 736; reprised in Lorenzen, Seleced Ar ticles in the Confit of Lawe (1947), 11, 12. "2 PRIVATE INTERNATIONAL LAW the former are intemational in nature, rules of Private Intemational Law or Conflict of Laws are national or municipal in character. This admits of one ‘exception, for rules of Private Intemational Law become truly international when embodied in a convention, as the Warsaw Convention of 1929, as amended at the Hague in 1955 and supplemented by the Guadalajara Con- vention in 1961. The distinction was ably drawn by the Permanent Court of ‘Intemational Justice when it observed that rules of Private Intemational Law “may be comimon to Several States and may even. be established by intema- tional convention or custonis, and in the latter case may possessés the char- acter of true intemational law governing ‘the relations between States. But apart from this ithas to be considered that these rules form part of municipal aw." AS one writer observés: “Today, the nationalist conception of Private Intemational Law can be considered dominant. Itis the only hypothesis con- forming to facts: There are just as many Private Intemational Laws as there arelegal systems" For this reason, Public Intemational Law finds its source in the common will of States, whereas Private Intemational Law finds its source in the will ofa particular State. As a consequence ofthis distinction, in case of dispute or cénflict, in Public Intemational Law, recourse is had first, to diplématic ciannels, then to good offices, mediation, conciliation, conithission of inquiry and arbitration, thea to retorsion, feprisal and other ‘measures short of War, and’in extreme cases to war itself, while in Private Intemational Law, recouitse is had to national of municipal tribunals. ‘Those who follow the traditional definition of Public Intemational Law, namely, that itis a body of rules and principles of action which are binding ‘upon States in their relations with one another would add two more dis- tinctions: (1) that Public Intemational Law or Conflict of Laws deals for the most part with States, while Private Intemational Law or Conflict of Laws deals with private individuals,” a notion that is under heavy attack today” (2) that Intemational Law recognizes only transactions in which sovereign ‘eran Loan Case (1929) Seis A, Nos. 20 and 2s. Als 2 Haton Wo Cont Reports, 371 a Nassboum; 42, “HCE By, La of Nations (1958) Is Opps (od by Lavery, ints ional Law; Vol. 1, 4 (1948). *Mino, 2, : See Song & Yop, Pal Jnteraona Las, 2360992). NATURE, DEFINITION AND SCOPE 3 States are interested, whereas Private Intemational Law assumes control ‘over transactions strictly private in nature, in which the State as such gener- allyhas no interest.* The validity of this last distinction may be conceded if. ‘the term “private transactions” is confined to the status of persons and things which, though not involving matters of intemational concem, may bethrown into dispute because of overlapping jurisdictions and conflicting legal sys- tems. ‘These distinctions -arenot recognized by the monists, Their view is that individuals alone are and can be the subjects of Intemational law, whether Public or Private. To them, both are the same, and are but manifestations of assingle concept of law, ultimately addressed to and binding upon the indi- vidual. For law, maintains Hans Kelsen, “can oblige and bind only individu- als, and not those who as juridical persons are to be distinguished from private individuals. The juridical person (the State) inthis sense is an auxil- iary concept, an expression of a juridical theory designed to facilitate expo- sition.” Midway between the traditional view that States are subjects of Public ‘Intemational Law and the monistic view that individuals are the only subject of all law is the school of thought which would broadea the applicability of Public Intemational Law so as to include not only Statzs but individuals as ‘well. This school, therefore, defines Public Intemational Law as the body of rules and principles which are binding upon States in their relations with one another and upon individuals both in their relations with States and in their relations with one another in matters of intemational concer.” In light of historic developments—such as the Nuremberg War Trials, which hold in- dividuals personally accountable for war crimes and the adoption of the United "Pinon, 2, Kelson, Theorie Generale Du Droit Intorntional Public, Academie de Droit Intera- tional, Reseueil des Cours (1932, 142). Cf. Stevenson J., The Relation: Private Intomatianal Law, 52 Col. L; Reve, $61-S88 (1952), where th “the telatioaship betwoon public and international law is ons of identity or dependency.” Katzenbach, op, eit, 10989, et seq. Prof. Curtis, on the other hand, advocstes the theary of governmental or state interest in solving probloms in Confit of Laws. Tho assumption is that every stato has an interest in the application ofits policies as expressed in its laws, He would, therefore, deny the view that states have no interest in transactions falling within the domain of Conflict of Laws. See ‘Currie, Selected Essays on the Conflict of Laws, Chaptor 4 *Tessup, A Modena Law of Nations, (1948) 17.14 PRIVATE INTERNATIONAL LAW Nations Charter and the Universal Declaration of Human Rights, both of ‘which stress the promotion of fimndamiental rights of the individual—the defi nition of Schwarzenberger is probably more accurate: ‘ “International Lave is the body of legal rules which apply be- ‘ween sovereign states and such other entities as have been granted international personality.” This definition, however, does not obliterate the principal distinctions between Public and Private Intemational Law. *Mannal of Intemational Law 1. = CHAPTER IL HISTORY AND IMPORTANCE A. History of the Subject A brief survey-of the histotical development of Private Intemational Law is necessary atid iiseful for the reason that our codal rules on the sub- ject are few and theit implications can only be appreciated in the context of their antecedents in Continental Europe. Moreover, wih the implantation of ‘American sovereignty in the Philippines, Anglo-American concepts in Con- flict of Laws found concrete expression in statutes and decisions. The sway ‘ofthese concepts has been so cogent that even with the juridical withdrawal of that sovereignty, they have continued to influence the'development of Philippine law on the subject. It will therefore help us to examine the histori- cal origins of these concepts." J. Earliest Period - Theory of Statutes ‘The first stage of the study of Private Intemational Law dates back to the rise of the Italian city-states such as Florence, Milan, Bologna, Pisa, ‘Venice, Padua and Medina, which, due to their growing wealth and progress in trade and commerce, developed customs of their own on a large scale uring the twelfth to the eighteenth centuries. The resulting inter-municipal conflicts aroused the attention and interest of the Italian jurists who were principally in the University of Bologna, reviving the s:udy: of Roman Law. Easily the most outstanding jurist of this period was Bartolus (1314-1347), ‘who has been described by many writers as the father of Private Intema- tional Law. A theory of statutes was formulated to solve the conflicts. The term “statute” originally stood for the particular laws of the several Italian "For an extensive treatment of the history of the subject, seo Il Beale 1880-1970; Sack, AN., Conflict of Laws in the History of Englith Law, Vol ID, Law: A Century of Progress (1937); Laine, introduction au droit iatematioaal prive (2 vols), Laurent, Droit Civil Inter~ ‘national (8 vols), 1880. Seo also Cheshire and North, Chapter Il; I Rabel, 6-29; Ehrenzweig, PIL, Chapter L 7 1516 PRIVATE INTERNATIONAL LAW city-states, but was later used to mean local laws, statutory or customary. A. distinction was drawm between real statutes (statuta realia), personal stat- utes (statuta personalia), and mixed statutes (statuia mixia). Real statutes were those that applied to things particularly immovables within the terr- tory, personal statutes were those that applied to and followed a person out- side his domicile, such as laws on personal status and those that concemed movables, inasmuch as with reference to the latter they followed the person. of the owner, mobilia sequuntur personam. Mixed statutes were an ill-de- fined group of laws of a dubious nature and made to apply principally to contracts As might be expected, the classifications were overlapping and confusing, | “The greatest difiouly lay in deciding whether a given rule was-per- sonal or real in character. For example, a statute regulating a person’s right to succeed to the property of another concems both persons and property: It was suggested that a statuteis real ifit mentions things first, and personal if persons occupy first place, Conflicts problems were sometimes solved by a purely conceptualistic, frequently grammatical, analysis of the statutes.” 2, The French jurists of the sixteenth century In the sixteenth century, the political organization of France proved con- ‘genial to the development of the statute theory. The different French prov- ‘nces had separate systems of law, called coufwme or customs. Since these customs differed from province to province, clashes arose frequently and the French jurists built upon the statute theory to resolve the conflicts. “Two eminént'légal thinkers of thie period, ‘Charles Dumoitlin (1500- 1566) and Bertrand D’Argentre (1519-1590), contributed greatly to'the development of the law as we know it today. Dumoulin was primarily responsible for the doctrine that parties to the contract could choose the law that was to govein their agreement, a doctrine which was firmly established in’ England and Continental Europe centuries later, and now adopted in America, D’Argentre, partly motivated by his fendalistic views, put for- ward two theories: (1) that whenever there was any doubt as to whether a "Cheshire and North, 19. Thus, Bartolus held that a statute which reads Bona decedentivm peniant in primogenitum was real, but Primogenitus succedat in omnibus rebus was porsonil. See Nassbaum, 11; UL, Beale, 1890-1905. “Wolff, 26, 27 HISTORY: AND IMPORTANCE W stanatory rule was personal or real, or whenever a rule was partly real and partly personal, it was to be deemed real. He maintained that the term per- sonal statutes should cover only those statutes which deal with questions of status or capacity or with property in chattels; (2) in matters of succession, where aperson leaves.ismovables in various countries, the law of the coun- tries concemed should be applied respectively to the iramovable therein situ- ated rather than for the latter to be regulated by one and only one law. This theory haxbeea adopted by English and American law, and even by coun- tries influenced by thé Roman Law doctrine of universal succession such as France, Belgium, and Austria? + 3. The doctrine of comitas gentium A further development of the statute theory oonured inthe Nether Jands during the severiteenth century. Netherlands obtained its independence from the Reich by the Treaty of Westphalia of 1648, after a long and bitter struggle. A new confederated nation, composed of legally independent prov- inces each with its own law, presented a fertile field for the development of Private Intemational Law. Zealous of their independence, and heavily bas- ing their writings on the new theory of sovereignty, 2 group of Dutch writ- ‘ers, Burgundis (1596-1649), Rodenburg (1618-86), Paul Voet (1619-77), John Voet.(1647:1715),-and Ulrich Huber (1636-94), vigorously denied that’ States were under any legal obligation whatsoever to apply foreign law. ‘They contended that such application, unless imposed by treaty, results only from comitas gentium, that is, from considerations o” courtesy and expedi- ency Huber, whose views influenced Joseph Story of America and many English writers, laid down three principles: "This theoiy was not adopted by the Spanish Civil Code, afr Ag John. Voot puts it: “No statu, real, personal or anixed can act of itself beyond the tonitory ofthe legislator, nor it om have any effect elsewhere, spsinst the wil ofthe legis ‘tor of another place, For since statutes can have no furtior power than they receive fom the legislator who creates them, and the powor of the legislator is limited by the bounds of his tenitory, it i obvious that all force of the statutes themselves is cit in and cirenmscribed by the boundazies of the legidator” And in aswer to the question why some laws ate given ‘extratoctril application, the samo author bas this to say: “T belive that this matter is to bo ascribed to this comity, which oao nation manifests to another, aher than to the rigor of law and the fundamental power over which every magistrate has over movables situated in this terstory”” I Commentarictum ad Pandecta, ft. IV, Secs. 5, 11, (7 in passim.18 PRIVATE INTERNATIONALLAW (1) The laws of every State operate within the territorial limits of such State and are binding on all its subjects but not beyond those limits; (2) Subjects of a State are all those who are found within the limits ofits territory, whether they reside there permanently or whether their presence there is only temporary; (3) Every sovereign, out of comity, admits that a law which has already operated in the country of its origin shall retain its force ev- erywhete, provided that this will not prejudice the subjects of the sovereign by whom its recognition is sought.’ ‘The first two of these principles embody the doctrine of pure territorial- ity, which was to have a pervading influence upon Anglo-American law; and by the third rule, extraterritorial effect may be obtained through the application of the doctrine of comity, primarily designed to secure reciproc- ity and thereby contribute to the advantage of all nations concemed. The well-grounded belief that the blanket application of the territorial law to things and persons within a State would, in many conflicts cases, result in ‘nfaimess compelled the Dutch writers to advocate the doctrine of comity.* Comitas was supposed to be liberally granted in answer to the demands of intemational trade, However, thenew doctrine only resulted in giving pref- erence, in a number of cases, to the local public policy over foreign law. It must be noted that the Dutch did not intend, at least in words, to abandon the theory of statutes. What they maintained was that this theory should be subordinated to the idea of comitas® =” To the extent that the Dutch doctrine recognizes thet the sovereign of cach country is free, in the absence of a contrary treaty obligation, to deter- mine under what conditions his judges shall apply foreign law, itis followed ‘in actual practice all over the world. As for the rest of the doctrine, the conception of comifas gentium, as a means of explaining why the various Sovereigns establish rules on the application of foreign laws, “is hardly ten- sble ans nt many soporte in modem ties." "Wolf, 17, citing Huber’s de Conflctu Leguin; see also Davies, 18 B.Y.LL. (1937) 49- 8. "Prof. Beale stiles that Story and Foolix followed the Dutch waiters on this point, I Beale 1964 welt, 28. "Idem. HISTORY AND IMPORTANCE 19 4. Beginning of codifications ‘The Dutch emphasis on sovereignty of the State as the source of all, rules on Conflict of Laws induced legislators in Continental Europe to es- tablish rules of Private Intemational Law in their codes of civil law. The Bavarian Code of 1756 reproduced some genetal principles laid down by. the statutists. Its remarkable aspect is comparable to a similar provision now foundjn our Civil Code," namely, that it declines to accept the rule that movables follow the person, replacing it with the provision that the /ex situs (law of the place where the thing is situated) shall prevail “without any distinction between immovables and movables and between corporeal or incorporeal things.” The Prussian General Code of 1794 adopted many rules ofthe statutists and developed some rules of ts own. The principle of res magis valet quam pereat™ was applied to Private Intemational Law in the following manner: (1) if a person has two domiciles, which is possible under European laws, that domicile is decisive under the law of which the centract or act in ques- tion is valid; (2) if a person domiciled abroad enters into contract within Prussian territory respecting chattels there, the contract is valid if under the law of either (his domicile or that of Prussia) he is capable of entering into contract. "In other words, if by the law of his domicile, he is incapacitated, whereas by the law of theplace wherehe entered into a contract, i., Prussia, heis qualified to contract, then the law under which the contract is valid is to be applied, ie., Prussian law—a very sound idea for the protection of com- ‘mercial intercourse. Time and again, this second prindple of validation has bbeen championed by leading writers both in America and Europe. ‘The enactment of the French Civil Code of 1804, after which the Span- ish,” Belgian, Roumanian,”” and Peruvian rules-on Private Intemational "Article 16, Pat. I Civil Code: “Real Propeity as well as porsonal property is subject to the law of the country where it is situated” "Meaning that “the thing may rather havo effect than be destroyed” (Black’s Law Dictionary, Rev. 4th od, p. 1714) "Cod. Makimilianus Bavaricus, L. 2, S. 17. Thié is so since one cannot presume that 4 rational person dasires to perform a usolass, invalid act—valee! omni melioru mode, quo valare protest "Civil Code of Spain, Ait. 8,9; Teas do Bos I ots, I Manoea 94-110; Castn, Derecho Civil Espafiol, Comun y Foraal (1943) 88-109. “Belgian Civil Code, Art 13. 'Roumsniaa Civil Code, Art 22, “Peruvian Civil Code, Introd, IV, V.20 PRIVATE INTERNATIONAL LAW Law were pattemed, was a momentous period in the history of this law. Article 3 of the Code.of Napoleon provided that French laws conceming, personal status and capacity gover Frenchmen even when residing in for- ign countries. This article frst established the principle that an individual’s personal law ought to be determined by his nationality rather than by his domicile, which was the prevailing principle then: While this article, like that of the Spanish Code'? and that of the Civil Code of the Philippines,'* ‘was expressed-unilaterally, the converse rule slowly but firmly established itself. A foreigner residing:in France should, by parity of reasoning, be gov- emed as to his status and capacity by the law of the country of which hes a national. This is the prevailing rule applied by the French courts,” and is logically accepted in Spain.” 5. Nineteenth century jurists ‘Thenineteenth century saw the ill development of two groups of writ- rg in Private Intemational-Law: the theoretical and the positive, represent- ing respectively, the deductive and inductive approaches to the subject. The theoretical writers began with a'set of priori principles, from which they derived a body of consistent rules. The great majority of continental writers adopt this method tip to now. On the other hand, the positive writers studied the actual rulesiin force and endeavored to reduce them to systematic order. ‘The English citd American writers have, in the main, followed this method. They donot claim universal validity for their rules and are careful to indulge in any generalization not supported by decisions. In appraising the merits and the demerits of the theoretical method, and inevitably of the positive ‘method, Dicey has this to say” > “The two great merits of the theoretical method are: first that it keeps before the minds of students the agreement between the differ- ent countries of Europe as to the principles to be adopted for the TAnicle H, Civil Codo of Spain. "article 15, Civil Code ofthe Pilippiaes, “Laws relating to. family ights and duties, satus, condition, and legal capacity of Philippine nationals are binding upon them oven they reside in a foreign country.” Geo Dulaume, G.R., Ametican-French Private Intemational Lew (1935), 46-51; [ Rabel, 112; Cheshire and North, 201-202. "I Manvess, 103-106; cing decisions of the Spanish Supreme Couit, Nov. 6, 1867: Jan, 19, 1875; and Jan, 13, 1888; 1 Castan, op. cit, 98. . Conflict of Laws Grd od. 1922) 18-19. the HISTORY AND IMPORTANCE a choice of law, and nest that it directs notice to the consideration which English lawyers are apt to forget: thatthe choiceof one system of aw rather than of another for the decision ofa particular case is dictated by reasons of logic, of convenience, or of justice, and is not a matter in any way of mere fancy precedent. “The true charge against the theoretical method is that it leads tho writers who adopt it to treat as being law what they think ought to belew, and to lay down for the guidance ofthe courts of every coun- try rules whictr are not recognized as law in any country whatever. ‘The jurists of Continental Europe,’ writes Story, ‘ave with uncom- ‘mon skill and acuteness, endeavored to collect principles which ought to regulate this subject among all nations. But itis very questionable whether their success has been at all proportional to their labor, and whether their piinciples, if universally adopted, would be found ther convenient or desirable, or even just, under all circumstances. This remark exactly hits the weak point of a method which rests on the assumption common to most German juris, but hardly to be admitted by an English lawyer, that there exists certain self-evident principles of right whence can be deduced a system of legal rules, the rightness of which will necessarily approve itself to all competent judges.” ‘The development of Private Intemational Law during the nineteenth century may be ascribed mainly to three outstanding figures: Joseph Story, an American judge, Friedrich Carl von Savigny, the great German jurist, ‘who founded the historical school of jurisprudence, and Pasquale Stanislao ‘Mancini, the Italian statesman, (a) Story. Joseph Story, the first authoritative writer on Anglo-Ameri- ‘can Conflict of Laws, published his celebrated Commentaries on the Con- flict of Laws in 1834. In ithe brought together the conclusions of Continen- tal writers and the decisions of courts in England and America; by combin- ing “the new impulse with the old leaming,” his book brought about the renaissance of the subject and influenced important jurists not only in Anglo- American jurisdictions but in Continental Europe as well Although he was admittedly influenced by the Dutch writers, principally Huber and the