I I.

H I S T O R Y O F P R I V A T E I N T E R N A T I O N A L L A W

A. History of the Subject

1. Theory of Statutes
The first study of Private International Law dates back to the rise of Italian City-states such as
Florence, Milan, Bologna, Pisa, Venice, Padua and Medina. These cities are said to be
products of expansion due to their growing wealth, which carried with it, the development of
customs. Due to inter-municipal conflicts, Italian jurists from the University of Bologna
contributed to reconcile various factors. A theory of statute was formulated, with the term
connoting local laws, whether statutory or customary. In this age, conflicts problems were
sometimes solved with a grammatical analysis of the statutes,

Three distinctions were made: Real statutes, personal statutes and mixed statutes. The first
pertains statutes applicable to particular immovable within the territory; the second, which are
those applied to and followed a person outside of his domicile and third, laws which are made
principally available to contracts.

2. French Jurists of the sixteenth century

In this age, the political development of France contributed to the development of the statute
theory. The different provinces of France had separate systems of laws called customs. Due
to the diversity, clashes arose frequently. Scholars such as Charles Dumuoulin and Bertrand
D’ Argentre contributed greatly in this era.

Dumuoulin posited that parties to a contract could freely stipulate the choice of law that shall
govern their agreement. This principle was widely accepted in England and Continental
Europe and is now adopted in America. D’ Argentre, on the other hand, theorized that in case
of any doubt as to whether a statutory rule is personal or real, or if the statute is partly real
and partly personal, it is to be deemed real. He maintained that the term personal statutes
should cover only those statutes which deal with question of status or capacity or with
property in chattels. Second, in matters of succession, in case the decedent left immovable in
various countries, the law of such states should apply respectively rather than having one law
to regulate all. This theory is adopted by English and American law, among others.

3. Doctrine of Cognitas Genitium

In the seventeenth century, after Netherlands obtained its independence from the Reich by
treaty of Wesphalia, a confederated nation representing independent provinces was formed.
Each havin their own set of laws, a group of Dutch writers denied that states were under any
obligation whatsoever to apply foreign law. They contended that such application, unless
imposed by a treaty, results only from comitas genetium – courtesy and expediency. Two
doctrines were developed.

First, there is the doctrine of pure territoriality, which states: a) the laws of every state operate
within the territorial limits of such state and are binding on all its subjects but not beyond; b)
subjects of a state are those found within the limits of its territory, whether they reside their
permanently or temporarily. Second, there is the doctrine of comity, which is aimed a
reciprocity.

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The Dutch writers did not intend to abandon the theory of statutes, but maintained that the
theory of comitas gains supremacy. The doctrine of comitas was conceived in response to
undue advantage which is the result of the blanket application of the territorial law. The
Dutch also believed that while this is the case, each country is still free, in he absence of a
treaty obligation, to determine under what conditions should judges apply foreign law.

4. Beginning of Codification

With the emphasis of the Dutch on the sovereignty of the state as the source of all rules on
Conflicts of Laws, legislators in Continental Europe endeavored to establish rules of Private
International Law in their codes of civil law. One example is the Bavarian Code of 1756,
which declined the principle of mobile sequuntur personam and adapted lex situs (law of the
place where it is situated) without any distinction between movables, immovable, tangile and
intangible.

The Prussian General Code of 1794 adopted many rules of the statutists and developed some
rules of its own. The principle of magis vale quam pereat was applied in case of contracts to
determine the contracting party’s capacity. Meanwhile, the enactmentof the French Civil
Code of 1804 served as the model of other European rules in Confict of Laws, when it
mandated that French laws should govern with respect to its citizen’s personal capacity and
status even when residing in foreign countries.

5. Nineteenth Century Jurists

In the nineteenth century, two schools of thought with conflicting views emerged: the
theoretical and the positivists. The theorietical school of thought followed a deductive
approach to the subject. The theoretical writers began with a set of a priori principles to
which they derived a body of consistent rules. One critic of the said school of thought argued
that the system leads others to adopt and treat the system as being law what they ought to be
law, and to lay down for the guidance of the courts of every country rules which are not
recognized as law in any country. It is hardly admitted that there exists a set of self-evident
principles of right whence can be deduced a system of legal rules. On the other hand, positive
writers studied the actual rules in force and endeavored to reduce them to systematic order.

Ninteenth century private international law may be ascribed to three outstanding figures:
Joseph Story, Friedrich Caril von Savigny, and Pasquale Stanislao Macini. Joseph Story , an
American judge, published his work Commentaries on the Conflict o Laws in 1834. Although
he was influenced by Dutch writes, his method was chiefly inductive rather than deductive,
positive rather than theoretical. He posited that the most important general maxim is that ever
nation possess an exclusive sovereignty and jurisdiction within its own territory. Its
consequence is that every state affect and bind all properties, whether real or personal, within
its territory as well as all persons who are residents within it, both natural-born and aliens.
The natural consequence of this is that no state can by its law affect those outside of its
jurisdiction. However, he provided an exception – every nation has a right to bind its own
subjects by its own laws in every other place.

Savigny, on the other point, is a German jurist who published his book System of Modern
Roman Law in 1849. In his view, in cases containing a foreign element, the same legal
relations have to expect the same decision regardless of where the judgment was pronounced.

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It is not only the principle of comity which should be considered, but the fact that out of the
intercourse of nations, the benefits and advantages the application of laws brings to all
concerned. With his forward-looking views, Savigny has been regarded as the founder of the
international system of private international law.

Pasquale Macini delivered his famous inaugural lecture where he asserted that the basis of
international law is the nation. He maintained that the personality of an individual is
determined only by his nationality: an individual’s personality is recognized only if his
nationality is recognized. With this, jurists posited that legal systems are split into two rules:
a) those created in the interests of private individuals; and b) those for the protection of public
order. With regard to the first kind, rules are applicable to persons who beling to the country
by their nationality, and that in second case, criminal laws have territorial effects which do
not exceed beyond the limits of the country.

The Italian theory was adopted by numerous codes, one of which is the Philippines’ Civil
Code. The same put emphasis on national law rather than on domiciliary law as the governing
law of an individual’s status and capacity.

6. Modern Developments

Three systems have been developed upon the lapse of centuries: the neo-statutory stsem, the international
system and the territorial system. The Neo-Statutory System follows the Italian statuist school to the
effect that two or more independent laws are applicable to a conflicts problem, and then devises a method
to determine the law that shall prevail. Many of these writes adheres to Macini’s group that the national
law of the person should prevail, only limited by the demands of public order and the will of the
contracting parties.

The second school was inspired by Savigny’s view regaring the existence of international community of
nations having intercourse with on another. Because of this, it is maintained that a single body of
international rules that can and should solve all problems involving a foreign element exists. A juridical
act should in all cases be governed by the law of the place in which the act tok place.

The third group argues that only the law of a state applies to persons or things within its territory. Foreign
law is not applied in the forum. However, the followers of this school of thought is divided with regard to
its application: the first division believes that vested rights may be recognized, but not the foreign law
itself. The second division believes that vested rights theory is illogical and is not true in practice.

7. History in the Philippines

There was hardly any awareness in the Philippines of conflicts problems posed by facts containing or
involving a foreign element. This may be attributed to lack of materials available to legal scholars. The
American occupation of the islands had contributed significantly in the development of its understanding,
as the same resulted to the importation of American legal concepts. In conflicts cases decided by the
Supreme Court, American decisions were cited, however with a little appreciation of their origin and
context. In law schools, professors taught the subject in the form of question and definitive answers, more
only for the purpose of bar examinations.

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The Conflict of Laws is regarded in American jurisprudence as underdeveloped, and in the Philippines, is
still looked upon as in the stage of infancy. Conflict of Laws is regarded as an area in Civil Law,
presumably because a number of conflict rules are found in the Civil Code. However, it must not be
overlooked that his department of law is broad and all-encompassing, including remedial law, corporation
law, insurance law, to name a few.

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