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The traditional definition of international law is that it is a body of rules and principles of action which are
binding upon civilized states in their relations to one another. States are the sole actors in this definition
and, in the past, public international law dealt almost exclusively with regulating the relations between states
in diplomatic matters and in the conduct of war. Today, sovereign states remain as the principal subjects
of international law; but they are now joined by international organizations and even by individuals.' Thus,
the Restatement (Third) of Foreign Relations Law of the United States, which U.S. courts generally consider
as the most authoritative work on the subject, defines international law as the law which deals “with the
conduct of states and of international organizations and with their relations inter se, as well as with some
of their relations with persons, whether natural or juridical.” (Bernas, 2009)
Brierly adds: “The ultimate explanation of the binding force of all law is that man, whether he is a single
individual or whether he is associated with other men in a state, is constrained, in so far as he is a
reasonable being, to believe that order and not chaos is the governing principle of the world in which he
lives.” (Brierly, The Law of Nations)
In the ultimate analysis, although the final enforcer is power, fundamentally, there is a general respect for
law because of the possible consequences of defiance either to oneself or to the larger society.
In the ultimate analysis, however, the best answer is pragmatic. Fundamentally, there is a general respect
for law and also there is concern about the consequences of defiance either to oneself or to the larger
society. International law is law because it is seen as such by states and other subjects of international law.
Fundamentally a problem of choice of law between foreign law and local or municipal law by the forum
court, with local or municipal law as its starting point (Agpalo, Conflict of Laws 2004)
Peaceful remedies
Diplomatic netiation, tender and exercise of good
offices, mediation, inquiry and conciliation,
arbitration, judicial settlement by internatiol court of
justice
Forcible remedies
Severance of diplomatic relations, retorsions,
reprisals, embargo, boycott, non-intercourse,
pacific blockades, and finally war
FOREIGN ELEMENT
It is anything which is not domestic and has a foreign component to it. It can be a foreigner, a foreign
corporation, an incident happening in a foreign country, or a foreign law chosen by the parties. Without a
foreign element, the case is only a domestic problem with no conflicts dimension.
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
economic affairs of individuals and associations are rarely confined to the geographic limits of their birth or
conception (Saudi Arabian Airlines v. CA GR. No. 122191)
PHASES/HASEGAWA CASE
The difficulty in characterization arises from the fact that a conflicts situation or problem may be
characterized by the lex fori differently from the characterization of the lex causae (the law of the state with
which the act or transaction is most closely connected). Most writers hold that on the grounds of practical
necessity and convenience, it is the forum, or the lex fori, that should determine the problem’s
characterization, unless the result would be a clear injustice.
B. Connecting Factors
An analysis is made with respect to which jurisdiction or fora has the most connection to the case.
Factors:
a. Nationality of parties
b. Location of the act or event
c. Terms of the agreement or contract
d. Other matters
CHOICE OF APPLICABLE LAW
Article 1306 of the Civil Code provides that “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.” Parties to a contract are free to stipulate the applicable law that will
govern their contractual relations.