tu1

PT{fi.IPPINE CONII,ICT OF IAWS prpcedure therefore. Were domestication part really of our law and jurispnrdence, d damesticated corporation, would be simultoneously a dornestic and foreign corporation, since its foreign personality and foreign charter would still tmairr in force.
6

-.

ChapterXXV OF LAWS OF CONFLICT A BR|EFHISTORY

.i.

I\NCIENTROME

...

Conflict of I-aws could have,begun iu Ancient Rome;'but it did not. For one, Ancient Rome presented a fertile place for the "conflicts mleso beeausetwo legal systems were in development of vogue: Iloman citizens were governed by the civil law' of Rome; all others (inhabitants of the provinces of the Roman Empire) were under the jurisdiction of their o'nrn provincial legislation - how "conllicts" theories could have.arisen. But the easily, therefore, theories did not come -- for invariably only one law. prevailed whenever a Roman citizen was involved, namely, Roman civil law. Ilbwever, there were twoincidental developments - the concept of dnmicile and the concept of hs situs - (where immovables were concerned).(Graveson,Conflict of I'aw1, p. 20).

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

In 212 AD., the Edict of Caracalla corrfered Roman citizenship on all the people living within the noman Empirc consequently orily one law remained - the civil law of Rome - for any and all acfs, events, and trensactions within the Empire. Law was, thus, placed on a territorrcl without personal or racial discrimination. (SepGraueson,loc. cit.). THE COMING OF BARBARIANS In the 5th century, the Roman Empire was overthrown by the so-called "barbarian tribes': personal laut replaced tcnitorial law. of residence' was tha! ev,erypersog,,19q4rdl-ess This simply meen^q to'th'e la#'of lis-oi[inLl nagianor trtbe.lf the considered-subject
.1. ":,115

f1

r:J

;t,.; ' .

DITID!'

TIIDI\',|SI

TJI

U(,II.TLIUI

UI

I.CTWD

!.{4,

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

(2)

the application of one of the following: a) persorwl statutcs - which regulated men in their personal and domestic affairs (as distiuguished) from their proprietary and commcrcial ventures; real statutes - which regulate d things, partic ull.arly, immov ab els ;

THE RETURN TO TERRTORIAL LAW

Soon, the tbeory of personal law gave ryay to the return of tsritorial but: (1) In the North, feud,alism, a social order inherently premised on teiritoriality, gave cognizanceto only one principle.in dsciding conllict ess - the tes fori.
Q)

b) c)

mired sta.ntes - which ggyerned all other mattere.,induding. rcontracts- (See Chcshire, ' :' Priuote Intcrngtbrwl Inut, p- 37; Graveson,

COt t ergial

_In the South, the gmwth of Italian Citytaies (ivfilan, Bologna, Venice,, etc.), each with preconceivednotions oi mdependencg, i""igted on the tenitnrio,I principle in deciding conliicts cnsesbrought about by inter-city-state
rrerrtureg_

Ct"ry, of la.us,pp. 2!-22).

It should tre noteil that wbile thefrersond gfututes' , stressdd,theferconal lcu, the 'teal statutes" emphasized ' the tcnitnrial prbuiph- Indeed, I)ean Gravesonreferring to "rcal stahrtes" eayst.hat theylnere primarilyqrncemed with thinge;.and were applied only within the territorial Iimits of.the legal system of which they formed part. They however,afued every penton hansacting business within f,[6sg lilnits.'He concludes by stating that the 'immeasurable step in Theory of Statutes was an progress.' (Grauieson,Conflict of La'uts, p. 22). As rvill perhaps bc evideht, the statutes sometimes overlapped in theii actuai application. Something was neededto brirg aystem and order to the confusion caused. TWO JURISTS FROM FRANCE To bring a seirblance of order to the confusion apparently caused by the lheory of Statutes, two (2) French jurists improved on it with the following contributions: ( 1 ) Charles Damoulin (1600-1566) - accentuated the opersonal statutes" by stressing the principle that the parties to a transaction could choosethe proper law to apply. (Ier loci uoluntatis or let loci intenti.onis).
Q)

Ito England, as a matterof fact, courts DECLINED to decide cas-eshaving a foreign eiement (See G'ood,ricla Confliat 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) (2) -4ccursius - came forth with a disquisition on the subject based on the laws of Justiniaa. Ald,ricus (of the Universit5r of padua) came out opeDly with the question: lWhat law must a judgb apply if the Iitigants, before . him ,come from difrerent ,places witb conflicting nrles of law?'He gavehis answen .That *hich is more usefuI and which seems best to him.' Bartohrs de Scuofenatto (1814195?) evolved the-Tlwory of Statulas." lfris 4gn, oD account of his mdnumental contribution to the subject, hqq ben referred to as the "father of Private Intenational Law.' According to Bartolus, tlre stutute rieory meth.d, involved two (2) stepe: (1) the consider;tion of the appli.cable legal system that must govem the'legal sihiation Urouint up for judicial detennination;

(3)

(3)

Bertrond. AArgentre (1519'1590) - leaned towards the territori.al tlwory by resolving all doubts in favor of the "statute real." Furthermore, he opined that the "Lu, rei sitae" apphesto successionalrights in immoaobles.(See Groveson, Conflbt of Laws, pp. 21-22).

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

OF IAWS

THE DUTCH THEORY OF TERRTTORTAUW AruO COnrrry

At 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 Dutch j,'"i_st" (notably ulrich Huber, 1696-1694) formuiated two (2) fundamental maxims: (1) ' (2) ' fire laws of a state can only have force and effect within the confines-j-of its bnitorial jurisdiction; hence as a geaeral pridciple, th forum'can choose to exilude --- arl other lawe in'the adjudication.of conllict """ur. By way of exception, the forum may once in a while, as a. gesture of 'conit5f ;(comitas gentiurn') allow ihe operation of a foreign law within the forum, so long as tJre public policy of the'forum is not outraged. iiT"tty was thus allowed:
(a)

(3)

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

WRITERS OF TI{E 19THAND 2OTH CENTURIES

In general there are.three (3) kinde of writers in Conflic.t of Lawe:
-'<-\

(r)
11

priori or tlworetical) writers - from a these writers drab forth ccrtain gppltg&le to all ' @'generally -----oonflicts problbms: posteriori or positiue)writers - after a tloroughlgoing sludv of aU act""I casesand thd subject, they tny to formutate principtes wliclGtaeemto be adhered to, sometimes with great consistencv Dy noGa lew tnbuners; aBd

t@1" '@

(2) tx@"

ta owid,'uhfatmss - which would sometimesresult iu case_the piinciple of tcndtoriality was rigidly enforced; (b) to cope,with,the increasirry dcmands worldwidz of conlntcrce - which in pany caseswould be seriously hampered if, foreign legisltion *ould ,i"ll ti-es be unceremoniously brushed aside; and frnally; (c) to stress the fact that.:precisel,lfbecauseof its so-uereignty,a state may, at its discretinn, permit or _allow the applicafion,.of foreign law, witnin its borders. (SeeGraueso:iiConflict oSIn*r, p. Zi; Sii ako Beale, Conflict of Laws, VoI. lil, p.- iAOal Because Holiand (now called the Netherlands) stressed the definitive role of a sovereign state in drafting "o"niJt"-rot"., "trr"" states enacted express nrles in their code. For example: (1) Th.eBauarian Code(!Z56) - appliea the theory of lex rei sita.e not only to real but also to personal property. (2) The Generol Code of prussia (1794) _ stressed the principle of "efficacy' in'contracts; namely, that if according to one applicable law, thicontract isvalid, but according to another equally logical law, the contract is void, that which,suetsins the efficacy of the contract should be upheld (res.magis ialet quin perbat).

(3)

the writers who c@

some fam.us writers with their respective contributions to the 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 jurists (not onAmerican and English lpinigns ofEumpean decisions, for by that time, not many conflicts probl=ems had _arisen for'Sudicid determinatioir). (See Goo&ich, p. 3).Stonr firnly believe.t in the W,
ieorur 1t view of the.enrralifv nf- qrivarai*

as well as in the occasioiral Secs. .l& Q) Frizd,rich col ,o@n) fioderr Roman Law,\6ffII (German) - He wrote (1989) of which dealt with

Qenfli61 of Laws. He believed in the application of the

t benefits or the principle that every be governed by the law of

V'i':

ri,t*i1.'r

PIflLFFnIE @NFLICI OF IAWS

beenimposednot bI individual etatesbut bv ai

(3)

in the sens that he regarded conflicts nrles a8 having

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

G)

Code Napoleon, .domi.li"O 1as cliefly responsible $r replacing the thotnf l4t!Q' tihe lmtionalit5r theory..-

authoritative nrles of raw throughoutthe united states. i1"* " *a" " odi4 on ofAmerican Jt. Y"l"t"-."t Law;
it hes no biudine foE
va4ring, as

the A'erican logical setting down of what are considered the more

Together with Dicey of En credited with th

Rabel, Conflbt "f I*r*,

V"L I, pJ2).

Regarding charoyteryat2n, f9w inportant names ought to be mentioned: Franz IGhn who first discussed it in rCgi; gffi,ilr" refered to it as the doctrine_of qualification; FalconUriagq'*rfro suggested various step,s _in classGcatioo; roi Rabe! roi-ti"'rocalled'totality approach.' o

r-rrrfro

Altl g tftftAnV