CONSIDERATION OF STABILITY & PREDICTABILITY IN CONFLICTS CASES - 43 PJP 21

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  1. RECOMMENDED CITATION: DELA PEÑA, Mark Angelo S. (2024), “Consideration of Stability and Predictability in Conflicts Cases,” 43 PJP 21, available at <insert link> (last accessed on <date>).
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Enrichment of private international law jurisprudence and of choice of law principles is important because the goal is to improve the stability of varying systems of laws and claims and to enhance the predictability of results, all in line with the reasonable expectations of the parties. Other primary considerations are the maintenance of interstate and international order, ease of determining the applicable law, uniformity of results, avoidance of forum shopping, and simplification of the judicial task, all in pursuit of “conflicts justice.”[1]

Considering that different states may observe different conflict of laws rules, modern trends have been developed to address the lack of uniformity across states’ private international law rules. One such attempt is the Hague Service Convention.

One may easily be tantalized by the simplicity and efficiency of the traditional lex loci rules such as the lex loci delicti commissi rule. Surely, these rules are simple, predictable, and uncomplicated.[2] However, courts and scholars of conflict of laws have observed that the simplicity of the lex loci rules is more imaginary than real, considering that their rigidity can spawn more exceptions and more complexity.[3]

Little (2015) described the problem of rigidity of the lex loci rules in the following manner:

“Take, for example, a court’s decision to recharacterize a prenuptial agreement dispute as presenting a marriage issue, rather than a contract issue. The court making the recharacterization may be seeking to trigger the place of celebration’s law so as to avoid an inequity that would arise if it applied the law of the place of making the contract to the specific case. What does this mean for the proper characterization for future prenuptial agreements where the inequity is not an issue? Should the court use a marriage characterization on the basis of precedent, or should the court distinguish the precedent and use a contract characterization?”[4]

If the rigidity of the lex loci rules is allowed unchecked, they may result in injustice to parties. For example, the doctrine of lex loci delicti commissi states that the law of the place of occurrence of wrong should govern the respective rights and obligations of the parties. However, it may happen that the tortfeasor and the injured party are merely taking a short tour in Japan when the tortious accident happened. Thus, parties who have no substantial connection with Japanese laws are bound by lex loci delicti commissi for the simple reason that the tort occurred in Japan.

If, in the example given above, the tortfeasor and the injured party are Filipino citizens and the latter files an action for tort against the former, should Japanese laws be made to govern? What if Japanese laws provide a different – shorter or longer – prescriptive period? What Japanese laws bar tort actions between parties who are husband and wife? What if Japanese laws require a heavier or lighter quantum of evidence to establish liability? What if Japanese laws create a presumption of negligence or require extraordinary diligence in situations in which Philippines do not so provide?

These and many other questions are matters that go into the stability, predictability and fairness of conflict of laws rules. While the lex loci rules indeed offer some predictability of applicable law, they do not always provide predictability of results. While they offer stability in determination of the applicable foreign law, they do not always provide fairness to parties who are otherwise strangers to the applicable law, having no minimum or significant connections to the same.

[1] Harold L. Korn, The Choice-of-Law Revolution: A Critique, 83 COLUM. L. REV. 772, 959–60 (1983).

[2] Laura E. Little, Conflict of Laws Structure and Vision: Updating a Venerable Discipline, 31 Ga. St. U. L. Rev. (2015). Available at: https://readingroom.law.gsu.edu/gsulr/vol31/iss2/1.

[3] Lea Brilmayer & Raechel Anglin, Choice of Law Theory and the Metaphysics of the Stand-Alone Trigger, 95 IOWA L. REV. 1125, 1131–45 (2010).

[4] Georgia State University Law Review, Vol. 31, Iss. 2 [2015], Art. 1. Pg. 252.