RECOMMENDED CITATION: Mark Angelo S. Dela Peña (2024), “CHOICE OF LAW” AS A BETTER NAME THAN “CONFLICT OF LAWS”, 15 PJP 21, available at <insert link> (last accessed on <date>).ABOUT THE AUTHOR/S: Mark Angelo S. Dela Peña is a lawyer, court litigator, and law professor.
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“Conflict of laws” is a misnomer.
Like the term “private international law,” the term “conflict of laws” is also a misnomer. It creates confusion because it implies that there is necessarily a “conflict” or antagonism between the laws of the Philippines and those of a foreign country. The term itself frames the mind in the wrong way.
The truth of the matter is that a conflict is not even necessary for the application of conflict of laws rules. Hence, for example, Philippine laws on legitime – a person’s compulsory share in the estate of a deceased person – may be the same with Chinese law on succession. The attention of private international law as a subject is not on the “conflict” itself but on the question of which law, between municipal law and foreign law, should apply.
In other words, the student’s focus in studying this field of law is not to find incompatibilities between the laws of the Philippines and those of other countries. Their mismatch, opposition to each other, or differences do not even matter in the grant scheme as only one system of law will apply over an issue toward the end of the case. When a court proceeds to render judgment over a conflicts case, it does not indulge in the process of finding dissimilarities between two systems of laws. Rather, it selects one system over the other through the guidance of established principles and rules in private international law.
“Choice of law” is a better name for the subject.
Because of my discomfort with the use of the terms “private international law” and “conflict of laws” to refer to this subject, I humbly submit that the better term is “choice of law.”
The term “choice of law” fully reflects the purpose and scope of the subject. It gives the student a proper frame of mind on how to approach the topics under it and the principles involved in resolving conflict of laws disputes. With this, the goal becomes clearer: to determine and “choose,” or select, which law should apply to a given set of facts that require the application of foreign law.
After all, the goal of conflicts rules is to make a literal choice as to which system of laws should apply. Whether or not the laws of California, for example, are the same as Philippine laws is not important because the question is whether the former or the latter should apply.
At the bottom, I would like to emphasize that the choice is usually between Philippine law and foreign law. The starting point in the eyes of a Philippine court is Philippine laws. It is only when Philippine laws point to the application of foreign law that the latter becomes material to the case. Also, foreign laws, even if pleaded, cannot be made to apply if not properly proved as mandated by the doctrine of processual presumption.
Even if a party has properly or sufficiently pleaded and proved the existence and contents of foreign law, the court is not automatically bound to apply the same. One more barrier must be hurdled, i.e., the test of public policy. This is so because a foreign law that runs counter to an established public policy of the forum or contravenes an overarching constitutional consideration cannot be given force and effect in the forum state.
