REASON FOR MUNICIPAL LAW’S REFERENCE TO FOREIGN LAWS - 22 PJP 21 (2024)

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  1. RECOMMENDED CITATION: DELA PEÑA, Mark Angelo S. (2024), “Reason for Municipal Law’s Reference to Foreign Laws,” 22 PJP 21, available at <insert link> (last accessed on <date>).
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Students may find it interesting to ask the question of why municipal laws point to the application of foreign laws. If the municipal law of the forum has sufficient rules in place for the resolution of a dispute, why is there still a need to invoke the application of a foreign law? There are a few reasons proposed for this.

First, the status, condition, and legal capacity of persons are traditionally viewed to be beyond the powers of a foreign court. Being citizens of France, for example, Frenchwomen are governed by French laws insofar as certain aspects of their persons are concerned. They status, condition, and legal capacity are governed by their national law wherever they may be found.

Second, property cannot be said to be governed by the laws of a foreign country if it is located in another state. In other words, property cannot be governed by Philippine laws, for example, while situated in Japan whose laws are naturally more relevant than the former as far as real property or personal property found within Japanese territorial limits. In certain instances, property ownership, possession, use, and disposition, among others, are matters that may affect the public policy of the state wherein such property is situated.

Third, the forms and solemnities of contracts, wills, and other public instruments are normally dependent on the formality laws of the country where the same are executed. As a rule, forms and solemnities must comply with the law of the place of their perfection because the knee-jerk reaction is that such contracts, wills, and instruments will, if a dispute arises, go into the judicial stream of the same country. Furthermore, a state may find it in keeping with its own policies to require certain solemnities for certain instruments to avoid fraud within its territory, to ease up the process of evidence presentation in its courts, or to complement its existing laws or rules on presumptions arising from such documents.

If, for example, two foreigners are temporarily residing or sojourning in the Philippines, they are, as a rule, obliged and expected to comply with Philippine laws. As has been said, when in Rome, do as the Romans do.

In other words, the reasonable expectation is that a contract, will, or other public instrument must be recognized in form in the place of its execution in order to be recognized in form in a different state because the country of execution thereof may have or maintain, as mentioned above, certain policies for the protection and enforcement of public instruments. Plus, it is not unreasonable to expect that parties executing a contract in Japan would most likely litigate in Japan in case of breach thereof. Also, it is reasonable to expect, albeit not always true, that an instrument executed in the Philippines will be sought recognition and enforcement within the Philippine legal or judicial machinery.

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