DEFINITION OF PRIVATE INTERNATIONAL LAW - 12 PJP 21 (2024)
ABOUT THE AUTHOR: Mark Angelo S. Dela Peña is a lawyer, court litigator, and law professor.
LAST REVISION: [None].
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Definition of private international law
Private international law, otherwise known as conflict of laws, is a subdivision of private law under the civil law system. It is a bar examination area, covering at least one or two questions every calendar year.
It deals with the proper approach or analysis in resolving a private dispute with a foreign element. This foreign element activates the municipal law of the forum, which points to the possible application of a foreign law.
For example, suppose the case before the trial court involves the estate or the last will of an alien decedent. In that case, the New Civil Code of the Philippines (NCC) requires the forum to apply such decedent’s national law when it comes to the order of succession, amount of successional rights, the intrinsic validity of his/her will, [1] and the capacity of his/her heirs to succeed, i.e., the capacity to receive a portion of the inheritance.[2]
Notice, in the above example, that Philippine law refers to foreign law and directs the forum to apply the same. This is a classic example of a “reference,” a technical term used in private international law, which is different from “remission” and “transmission.”
However, it must be emphasized that more than such a reference is needed. The party relying on the application of foreign law must prove its existence and contents. Otherwise, the Filipino forum is justified in presuming that foreign law is not different from Philippine law.
Technological advancements giving rise to private international law problems
The proliferation of conflict of laws cases has been due to and is a result of technological advancements in communication and transportation. It used to be that persons and property were confined within a certain territorial jurisdiction, owing to a lack of interest in crossing borders or a lack of means to travel to another. Hence, in earlier days, the application of foreign laws was the least of the concerns of courts. Later, the advent of ships, planes, trains, remote communication, and so on have led to transboundary movement of persons and property, as well as the perfection of contracts between nationals of different countries.
Due to said advancements, it is now no longer unusual to find persons in places not their country of origin and incidents of property – such as ownership and possession – involving two or more systems of law. It is also now not uncommon to see contracts forged by two individuals both living in their respective countries, without having seen each other at all.
Difference/s between private international law and conflict of laws
There is no difference between private international law and conflict of laws; they refer to the same field or subdivision of law. However, it has been the trend to do away with the name “conflict of laws” as it has been perceived as a misnomer as will be discussed in subsequent journal entries. This trend does not do much help as the term “private international law” also tends to mislead the student of law.
Currently, in the Philippines, the term “private international law” is preferred and is used in the Legal Education Board’s (LEB) prescribed curriculum for law schools in the country. The old term “conflict of laws” has been abandoned but no substantial change has been made to its course description.
[1] CIVIL CODE, Article 16, Paragraph 2.
[2] CIVIL CODE, Article 1039.