CHAPTER III

THEORIES ON WHY THE FOREIGN LAW MAY

IN SOME CASES BE GIVEN EFFECT
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When the forum assumes jurisdiction over a conflict case, it

may either apply either the internal law or the foreign law

Why should we apply the foreign law?

Is out law insufficient?

THEORIES:
a. THEORY OF COMITY
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We apply the foreign law because of its convenience, and

finally because we want to give protection to our citizens,
residents, and transients in our land

It 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, of other
persons who are under the protection of its laws.

Defects of the Theory of Commity

Theory presupposes the existence of an

international duty. There is no such duty, Every
state apply its own internal law exclusively.

Theory assumes a desire to show courtesy to

other states which is not true. The real reason for
the application of the proper foreign law is the
avoidance of gross inconvenience and injustice
to litigants, whether natives or foreigners.

The theory apparently leaves the application of

the foreign law to the discretion of the forum. This
will prevent the adoption of definite rules and
principles for Conflict of Laws.

Justification of the Theory of Comity

Sovereignty: only through comity of nations

Recognition of laws cannot be claimed as a right,

but only as a favor or courtesy. Permitted and

accepted by all civilized communities from mutual

interest and convenience. Rest on the discretion
of the forum.
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Kinds of Comity

Comity that is based on Reciprocity

o If the laws and judgments of the
forum are recognized in a foreign
state, the forum in turn will recognize
the laws and judgment emanating
from said foreign state.

Comity based on the Persuasiveness of the

Foreign Judgment
o If the forum is persuaded that a
foreign judgment is meritorious and
has been rendered by a court of
competent jurisdiction, it will not
hesitate to enforce that foreign
judgment in the forum even if the
foreign forum does not reciprocate.

b. THEORY OF VESTED RIGHTS

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We seek to enforce not the foreign law itself but the rights
that have been vested under such foreign law

Basis of the Theory of Vested Rights

Based on the cardinal principle of territoriality.

Under such principles, a judge cannot directly

recognize or sanction foreign laws and judgments;
it is his own territorial laws which must exclusively
govern all problems demanding his decision.

Under the vested rights theory, extraterritorial

effect is given not to foreign laws and judgments
as such bu merely to the rights they have created.

Defects of the Vested Rights Theory

Recognizing vested rights, implicitly recognize the

foreign law. There has to be first choice of proper
applicable foreign law, and only then, may there
be an examination of the rights involved.

c. THEORY OF LOCAL LAW

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We apply foreign law not because it is foreign, but because

our own laws, by applying similar rules, requires us to do so;
hence it is as if the foreign law has become part and parcel of
our own local law

The forum, when confronted by a case involving foreign

elements, always applies its own law to the case; but in doing
so, adopts and enforces as its own law a rule of decision
identical, or at least highly similar though not identical, in
scope with a rule of decision found in the system of law in
force in another state or country

The rule thus incorporated into the law of the forum may for
convenience be called the domestic rule of the foreign state

d. THEORY OF HARMONY OF LAWS

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Theorists insist that in many cases we have to apply the

foreign laws so that wherever a case is decided, that is,
irrespective of the forum, the solution should be
approximately the same; thus, identical or similar solutions
anywhere and everywhere. When the goal is realized there
will be a harmony of laws.

e. THEORY OF JUSTICE
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purpose of all laws, including Conflict of Laws, is the

dispensing of justice; if this can be attained in many cases by
applying the proper foreign law, we must do so