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PART ONE: INTRODUCTION

CHAPTER I: Scope of Conflict of Laws: Its Nature, Definition and Importance

A. DIVERSITY OF LAWS AND CUSTOMS

The principles of conflict of laws incorporated in municipal laws are based not on the extraterritorial validity of the law of the foreign state but on comity of nations

HILTON V. GUYOT Comity – is the recognition which one nation allows within its territory to the legislative,

executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or other persons who are under the protection of its laws

Judgments of a foreign country, for want of reciprocity, are not entitled to full credit and conclusive effect

B. DEFINITION Private international law:

o That part of municipal law which governs cases involving a foreign elemento Those universal principles of right and justice which govern the courts of one state

having before them cases involving the operation and effect of laws of another state or country (Minor)

o That part of law which comes into play when the issue before the court affects some fact or event, or transaction that is so closely connected with a foreign system of law as to necessitate recourse to that system (Chesire)

o That part of law of each state or nation which determines whether, in dealing with a legal situation, the law of some other state or nation will be recognized, given effect or applied (AmJur)

o The law concerning the right of persons within a territory and dominion of one nation, by reason of its acts, private or public, done within the dominion of another nation (Hilton v. Guyot)

Public International Law Private International LawApplicability Govern states in there relationship

amongs themselvesGoverns individuals in their private transactions which involve a foreign element

Sources of law Article 38 of the ICJ Internal law of each stateAs to persons involved

Governs only states and internationally recognized organizations

Governs individuals or corporations

As to transactions

Involves state-to-state or government-to-government matters

Private transactions between individuals

As to remedies Diplomatic protest, peaceful means of settling disputes or even use of force

Provided by municipal laws of the state

C. OBJECT, FUNCTION AND SCOPE

Object and Function – to provide rational and valid rules of guidelines in deciding cases where either the parties, events or transactions are like to more than one jurisdiction

o The rules aim to promote stability and uniformity of solutions provided by the laws and courts of each state called upon to decide conflict cases

CHAPTER II:A Brief History and Development of Conflicts of Laws

A. ROMAN LAW ORIGIN

ius gentium – law of nations, specifically the law that governs the relations of State Bartolus – Italian jurists, also known as the Father of Conflict of Laws

o Formulated the Theory of Statutes Northern Italy – Classification of Statutes

o Real (statuta realia) – immovable propertyo Personal (statuta personalia) – persono Mixed (statuta mixta) – contracts, depending on the parties involved

Franceo Charles Domoulin – advocated a method to determine what law would govern contracts

between different nationals

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o Bertrand D’Argentre – formulated the principle of universal succession

Netherlandso The state was under no obligation to apply a foreign law unless imposed by a treaty, by

comitas gentium or on consideration of courtesy and expediencyo John Voet – no statute can act by itself beyond the territory of the legislator nor can it

have an effect elsewhere against the will of the legislator of another stateo Huber – developed the territorial principle which provides that a law which has

already operated in the country of its origin shall retain its force everywhere, provided that this will not prejudices the subjects of the sovereign whose recognition is sought

19th Centuryo Justice Joseph Story – Commentaries on the Conflict of Laws o Joseph Beale – American Restatements of the Conflict of Laws, territorial “vested right’o Savigny – System of Modern Law

The application of foreign law was not due to comity but the resultant benefits for everyone concerned

Theory of “seat of the legal relationship” – every element of a transaction must be governed by the law of the place with which said element has the most substantive connection

o Mancini – advanced the nationality theory in matters that concerned status, capacity and the private interests of the individual

B. MODERN DEVELOPMENTS Neostatutists – when two or more independent laws are applicable to a conflict of laws

problem, the method so devised determines what law shall prevail Internationalists – there should be as single body of rules that can solve problems involving a

foreign element Territorialists – the law of the State applied to persons and things within the State

CHAPTER III: Sources of Conflict of Laws

SOURCES1. Codes and Statutes2. Treaties and International Conventions3. Treatises, Commentaries and Studies of Learned Societies4. Judicial Decisions