tu1 PT{fi.IPPINE CONII,ICT OF IAWS

prpcedure therefore. Were domestication part really ofour law and jurispnrdence, d damesticated corporation,would be simultoneously a dornestic and foreigncorporation, since its foreign personality and foreigncharter would still t€mairr in force.

6

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. i . ,

of1 r :J ;t,.; ' .

Chapter XXV

A BR|EF HISTORY OF CONFLICT OF LAWS

I\NCIENT ROME ...Conflict of I-aws could have,begun iu Ancient Rome;'but it did

not. For one, Ancient Rome presented a fertile place for thedevelopment of "conflicts mleso beeause two legal systems were invogue: Iloman citizens were governed by the civil law' of Rome; allothers (inhabitants of the provinces of the Roman Empire) wereunder the jurisdiction of their o'nrn provincial legislation - howeasily, therefore, "conllicts" theories could have.arisen. But thetheories did not come -- for invariably only one law. prevailedwhenever a Roman citizen was involved, namely, Roman civil law.Ilbwever, there were twoincidental developments - the concept ofdnmicile and the concept of hs situs - (where immovables wereconcerned). (Graveson, Conflict of I'aw1, p. 20).

THE EDTCT OF CARACA!-LA (212 A.D.)

In 212 AD., the Edict of Caracalla corrfered Roman citizenshipon all the people living within the noman Empirc consequentlyorily one law remained - the civil law of Rome - for any and allacfs, events, and trensactions within the Empire. Law was, thus,placed on a territorrcl without personal or racial discrimination.(Sep Graueson, loc. cit.).

THE COMING OF BARBARIANS

In the 5th century, the Roman Empire was overthrown by theso-called "barbarian tribes': personal laut replaced tcnitorial law.This simply meen^q tha! ev,ery persog,,19q4rdl-ess of residence' wasconsidered-subject to'th'e la#'of lis-oi[inLl nagian or trtbe.lf the

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115

A DITID!' TIIDI\',|SI TJI U(,II.TLIUI UI I.CTWD !.{4,

parties to a contract came from different nations, the l.aw of tIrcdzbtor prevailed - for it was then believed that his interest wereparamount. (See Graveson, ln. cit).

THE RETURN TO TERRTORIAL LAW

Soon, the tbeory of personal law gave ryay to the return oftsritorial but:

(3) Ito England, as a matterof fact, courts DECLINED todecide cas-es having a foreign eiement (See G'ood,riclaConfliat of Laws, p. B, citirg Anonytnc)t s,y.B- 2 Edut. II,SS Yeor Bool Serics, IIO, lgog).

However, there arose an agitation for "conflict nrles." Three(3) outstanding jurists came to the fore:

(1) -4ccursius - came forth with a disquisition on the subjectbased on the laws of Justiniaa.

(2) Ald,ricus (of the Universit5r of padua) came out opeDlywith the question: lWhat law must a judgb apply if theIitigants, before . him ,come from difrerent ,places witbconflicting nrles of law?'He gave his answen .That *hichis more usefuI and which seems best to him.'

(3) Bartohrs de Scuofenatto (1814195?) evolved the-Tlworyof Statulas." lfris 4gn, oD account of his mdnumentalcontribution to the subject, hqq be€n referred to as the"father of Private Intenational Law.'

In the North, feud,alism, a social order inherentlypremised on teiritoriality, gave cognizance to only oneprinciple.in dsciding conllict ess - the tes fori.

_In the South, the gmwth of Italian City€taies (ivfilan,Bologna, Venice,, etc.), each with preconceived notions oimdependencg, i""igted on the tenitnrio,I principle indeciding conliicts cnses brought about by inter-city-stateCOt t ergial rrerrtureg_

According to Bartolus, tlre stutute rieory meth.d,involved two (2) stepe:

(1) the consider;tion of the appli.cable legal system thatmust govem the'legal sihiation Urouint up forjudicial detennination;

(2) the application of one of the following:

a) persorwl statutcs - which regulated men intheir personal and domestic affairs (asdistiuguished) from their proprietary andcommcrcial ventures;

b) real statutes - which regulate d things,p artic ull.arly, immov ab els ;

c) mired sta.ntes - which ggyerned all othermattere., induding. rcontracts - (See Chcshire,

:' ' Priuote Intcrngtbrwl Inut, p- 37; Graveson,Ct"ry, of la.us, pp. 2!-22).

It should tre noteil that wbile thefrersond gfututes', stressd d, the ferconal lcu, the 'teal statutes" emphasized' the tcnitnrial prbuiph- Indeed, I)ean Graveson referringto "rcal stahrtes" eays t.hat theylnere primarilyqrncemedwith thinge;.and were applied only within the territorialIimits of.the legal system of which they formed part.They however, afued every penton hansacting businesswithin f,[6sg lilnits.'He concludes by stating that theTheory of Statutes was an 'immeasurable step inprogress.' (Grauieson, Conflict of La'uts, p. 22). As rvillperhaps bc evideht, the statutes sometimes overlappedin theii actuai application. Something was needed to brirgaystem and order to the confusion caused.

TWO JURISTS FROM FRANCE

To bring a seirblance of order to the confusion apparentlycaused by the lheory of Statutes, two (2) French jurists improvedon it with the following contributions:

Charles Damoulin (1600-1566) - accentuated theopersonal statutes" by stressing the principle that theparties to a transaction could choose the proper law toapply. (Ier loci uoluntatis or let loci intenti.onis).

Bertrond. AArgentre (1519'1590) - leaned towards theterritori.al tlwory by resolving all doubts in favor of the"statute real." Furthermore, he opined that the "Lu, reisitae" apphes to successional rights in immoaobles. (SeeGroveson, Conflbt of Laws, pp. 21-22).

(1)

Q)

(1 )

Q)

THE DUTCH THEORY OF TERRTTORTAUW AruO COnrrryAt the conclusion of the 1hirty years War (1612-164g), Holland(now called the Netherlands)oamong other count"ies, gai"ed

indcpend-encg (by virtue of the peace of westphatia orienel.conscious of their count4/s new found sovereiguty, some Dutchj,'"i_st" (notably ulrich Huber, 1696-1694) formuiated two (2)fundamental maxims:

(1) fire laws of a state can only have force and effect within' the confines-j-of its bnitorial jurisdiction; hence as ageaeral pridciple, th€ forum'can choose to exilude arl' other lawe in'the adjudication.of conllict """ur.

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(2) By way of exception, the forum may once in a while, asa. gesture of 'conit5f ;(comitas gentiurn') allow iheoperation of a foreign law within the forum, so long astJre public policy of the'forum is not outraged. iiT"ttywas thus allowed:

ta owid,'uhfatm€ss - which would sometimes resultiu case_the piinciple of tcndtoriality was rigidlyenforced; -to cope,with,the increasirry dcmands of worldwidzconlntcrce - which in pany cases would be seriouslyhampered if, foreign legisltion *ould ,i"ll ti-esbe unceremoniously brushed aside; and frnally;to stress the fact that.:precisel,lf because of itsso-uereignty, a state may, at its discretinn, permit or_allow the applicafion,.of foreign law, witnin itsborders. (See Graueso:ii Conflict oS In*r, p. Zi; Siiako Beale, Conflict of Laws, VoI. lil, p.- iAOal

Because Holiand (now called the Netherlands) stressed thedefinitive role of a sovereign state in drafting "o"niJt"-rot"., "trr""states enacted express nrles in their code. For example:

Th.e Bauarian Code (!Z56) - appliea the theory of lex reisita.e not only to real but also to personal property.

-

The Generol Code of prussia (1794) _ stressed theprinciple of "efficacy' in'contracts; namely, that ifaccording to one applicable law, thicontract isvalid, butaccording to another equally logical law, the contract isvoid, that which,suetsins the efficacy of the contractshould be upheld (res.magis ialet quin perbat).

jl |'T(rErf HIS'TARY OF @NFIJCT OF IAWS

(3) T'le Mc Nopoleon of France (IgU) - enrphssi2ed thenntiana,lity theory in matters conceming status ottd,apcity. (See Clushhu, Priuote Intematiotwl Law, pp.201-202).

WRITERS OF TI{E 19TH AND 2OTH CENTURIESIn general there are.three (3) kinde of writers in Conflic.t of

Lawe:-'<-\

t@1" priori or tlworetical) writers - from a'@ these writers drab forth ccrtain

@'generally gppltg&le to all' oonflicts problbms: ------

tx@" posteriori or positiue) writers - after atloroughlgoing sludv of aU act""I cases andthd subject, they tny to formutate principtes wliclGta-e€em to be adhered to, sometimes with great consistencvDy noG a lew tnbuners; aBd

(3) the writers who c@

some fam.us writers with their respective contributions tothe subject are enumerated hereunder:

zz<-r(1) Joser\{o32lfnerican) - Chiefly writer,he wTote !'s

-Uommentaries on the Conflict of Laws"(1934), relylng chiefly on European decisions and tJee

(r)

11

(2)

(a)

(b)

(c)

lpinigns ofEumpean jurists (not onAmerican and Englishdecisions, for by that time, not many conflicts probl=ems

(1)

(2)

Q) Frizd,rich col ,o@n) (German) - He wrotefioderr Roman Law,\6ffII (1989) of which dealt with

had _arisen for'Sudicid determinatioir). (See Goo&ich,

as well as in the occasioiralSecs. .l&

Qenfli61 of Laws. He believed in the application of the

W, p. 3).Stonr firnly believe.t in theieorur 1t view of the.enrralifv nf- qrivarai*

t benefitsor the principle that everybe governed by the law of

V'i': r i , t * i 1 . ' r

in the sens€ that he regarded conflicts nrles a8 havingbeen imposed not bI individual etates but bv ai

(3)

PIflLFFnIE @NFLIC�I OF IAWS

Law; it hes no biudine foEva4ring, as

r - r r r f r o I A l t l g t f t f t A n V

G)

the A'ericanlogical setting down of what are considered the moreauthoritative nrles of raw throughout the united states.Jt. Y"l"t"-."t i1"* " *a" " odi4 on ofAmerican

Regarding charoyteryat2n, f9w inportant names ought to bementioned: Franz IGhn who first discussed it in rCgi; gffi,ilr"refered to it as the doctrine_ of qualification; FalconUriagq'*rfrosuggested various step,s _in classGcatioo; roi Rabe! roi-ti"'ro-called'totality approach.' o

SF, dgl,,a?d pubuc pouw@togetlel with thelroETlgEffiElf 'the

Code Napoleon,1as cliefly responsible

$r replacing the .domi.li"Othotnf l4t!Q' tihe lmtionalit5r theory..-

Together with Dicey of Encredited with th

Rabel, Conflbt "f I*r*, V"L I, pJ2).