I.

INTRODUCTION TO CONFLICT OF LAWS/PRIVATE INTERNATIONAL LAW

Nature, Definition and Scope

There had been various definitions of private international law presented by legal scholars. One to note is
the definition Minor, which states that “Private International Law embraces the universal principles of
right and justice which govern the courts of one state having before them cases involving the operation
and effect of the laws of another state or country. However, this definition is said to be erroneous, as: 1)
Private International law is in contrast, part of municipal law, and 2) there are numerous juridical concept
of rights and justice and is not to be confined in a narrow definition alone.

With a slight deviation from the aforesaid definition, Private International Law, or Conflict of Laws is
that part of the law of each state which determines in whether in dealing with a factual situation
involving a foreign element, the law or judgment of some other state will be recognized or applied in the
forum. With this, three key points may be deduced:

1. Private international law is merely a part of municipal law of each state;

2. The subject is any factual situation containing any foreign element; and
3. The primary function of this department of law is to determine whether the rules of law or the
judgments of some other state or states, and if so, to what extent, should be recognized or applied
in the forum.

By nature, conflict of laws is not a separate and distinct branch of law, nor it is a part of civil law. It
encompasses and traverses almost every department of law, and like subjects.

Subject

The title of the subject by which it is know in the present is still under dispute. Private International Law
and Conflict of Laws were criticized to be misleading or inaccurate. The first presupposes that there are
two kinds of international law: private and public; whereas private international law is not really
international in nature but is treated to be a part of municipal law. Meanwhile, Conflict of Laws suggest
that all that occurs is a conflict between the different laws and legal systems. With this, the purpose of the
subject becomes defeated, that is, resolve the same. While some authors suggested other names, the
present title prevails as no better title has been conceived so far.

Elements of a Conflict of Law Question

It has been said that Conflict of Laws question arise due to the concurrence of two factors:
1. The division of the world into different states or territorial units, each state or unit having a
different system of law; and
2. The presence of a situation containing a foreign element, that is to say, an event or transaction
affected by diverse laws of two or more states or territorial units.

The first is said to be the outcome of the diversified evolution of man. An anthropological research has
shown that various races and nations did not originate, or did not undergo, a single way of adaptation.
There are differences with their respective legal system, owing to complex way of life, customs and
habits. With this, each state is developed its own system dealing with particular subjects, such as birth,
family relations, marriage, among others.

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 I. INTRODUCTION TO CONFLICT OF LAWS/PRIVATE INTERNATIONAL LAW

The second element is present when a factual situation arises and confronts the possible effect of
applicability of the law of two or more states. This factor is inevitable as the social and economic affairs
of an individual is rarely confined within the geographical area of their birth or inception. The foreign
element may take part in a simple form, e.g. the fact that one of the parties to a contract is an alien. It may
also participate in a complex form, such as those involving business relations and transactions in two or
more states.

Importance and Function

The function of Private International Law is threefold: first, to prescribe the conditions under which a
court or agency is competent to entertain a suit or proceeding involving facts containing a foreign
element; second, to specify the circumstances in which foreign judgment will be recognized as valid and
binding in the forum; and lastly, to determine for each class of cases the particular system of law by
reference to which the rights of the parties must be ascertained.

But the primary function of Private International Law is discharged by pointing to the system or systems
of laws that will govern a given set of facts. The traditional view is that such function is complete when
the appropriate system of law has been chosen. This premise is deduced from the fact that rules of Private
International Law, like all other rules of law, apply only to a certain given facts not characterized as
creating a legal relationship. Furthernore, the selection of legal systems open to the court is limited to
those which are simultaneously valid. Lastly, the legal effects of a certain set of facts is not frequently
determined by one single legal system – it is necessarily applied from several systems, either
cumulatively or alternatively.

Private International Law is not present to provide a means of deciding cases involving a foreign element.
The department exists to promote a peaceable intercourse of private persons to adopt into the vast
changing times, both socially and economically. This is imperative especially in private relations, where
parties can rely on a stable foundation and in case of dispute, have an on-hand solution in its resolution.

Distinguished from Domestic Law

Distinguished from International Law

As distinguished from Public International Law, the latter refers to that law that regulates the relations of
states and other entities possessing international personality. The most important distinction between the
two is that Public International Law are international in nature, Conflict of Laws are municipal or national
in character. However, a rule in private international law becomes truly public in nature when it is
embodied in a treaty or convention.

Another difference is that public international law finds its source in the common will of states, whereas
private international law finds its source in the will of a particular state. Thus, in case of disputes, under
the former, recourse is had to diplomatic channels, good offices, retorsion, reprisal and other measures
short of war, and in extreme cases, war itself. For Private International Law, recourse is had to the
municipal or national tribunals.

Another distinction, which is debatable, is that public international law deals for the most part, with
states; private international law, with individuals. Such statement is said to be questionable, considering
that public international law granted individuals, personalities to stand in international tribunals and
regards him as a subject of public international law. Lastly, Public International Law recognizes

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 I. INTRODUCTION TO CONFLICT OF LAWS/PRIVATE INTERNATIONAL LAW

transactions in which sovereign states are interested, while private international law assumes control over
transactions private in nature.

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