CONFLICT OF LAWS BEING "PRIVATE" BUT NOT "INTERNATIONAL" - 13 PJP 21 (2024)
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The “private” aspect of conflict of laws
Private international law is so-called “private” law because it involves the private transactions of private individuals. It does not concern itself with the rights and obligations of states and state actors. Rather, it deals with contracts, family relationships, and other forms of obligations between private parties.
It is part of private law, not public law. While public law covers those fields such as criminal law that deals with crimes, private international law relates to contracts, successional rights, obligations arising from torts, and other such matters that do not involve the public at large.
The “international law” aspect of conflict of laws
The primary objection to the term “private international law” is that, while legal relationships governed are indeed “private” in nature, they are nevertheless not “international.” An observation has been made that this subject is “international law” in nature because of the application of foreign laws but the following rebuttals are worth noting.
First, although private international law involves the application of foreign law, such application is not the general rule as foreign laws are yet to be pleaded and proved as a matter of fact before Philippine courts before they can be considered in the decision-making processes. Even if sufficiently pleaded and proved, the foreign law still never assumes any “international” form as it does not refer to or arise from the law of nations. Rather, it is merely a foreign nation’s law.
Second, the term “international” creates confusion among law students and misleads them in their initial approach to the subject. This is primarily because of the existence of “public international law” as a separate field of law. Thus, anyone unfamiliar with the complex word of private international law may think, at least in the beginning, that the course primarily revolves around treaties and other interstate interactions. Instead, s/he will later discover, sometimes belatedly, the focus in the municipal law of the forum, which, interestingly, points to or calls for[1] the application of foreign law.
Third, the term “international” implies the involvement of states or state actors and their relationship or interaction in the community of nations while conflict of laws as a subject revolves around contracts, torts, corporations, property, and other dealings primarily between private persons. Except for certain treaties relative to the service of summons and other procedural matters and except for the doctrine of state immunity from suit, the bulk of legal references in private international law comes from Philippine municipal law such as the New Civil Code (NCC), the Labor Code of the Philippines (LCP), the Revised Corporation Code (RCC), the Revised Penal Code (RPC), and other domestic laws.
Thus, it is humbly submitted that both names – “private international law” and “conflict of laws” – are not the best terms to use in labeling this interesting and at times confusing field of law. As will be seen in subsequent journal entries, the best name for this course is “choice of law” which immediately captures the essence of the subject matter and sufficiently frames the mind of the student of law as to what to expect and what to learn.
[1] "Calls for the application of foreign laws" is a term used by this author’s student in private international law, Ms. Mari Antoinette L. Mandap.