FORMS OF FOREIGN ELEMENTS - 32 PJP 21

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  1. RECOMMENDED CITATION: DELA PEÑA, Mark Angelo S. (2024), “Forms of Foreign Elements,” 32 PJP 21, available at <insert link> (last accessed on <date>).
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As mentioned by the Supreme Court in the case of Saudi Arabian Airlines v. Court of Appeals (1998), a foreign element in a conflicts case may take different forms. I humbly submit that there are four forms that foreign elements may take or four categories under which they fall, viz: (a) those relating to persons; (b) those relating to property; (c) those relating to legal relationship or vinculum juris; and, (d) those relating to the court.

Foreign elements related to persons

As to persons, the nationality or citizenship of a party may be considered a foreign element. A person’s citizenship determines his/her legal capacity, legal condition, legal status, family rights, family duties, capacity to succeed, capacity to acquire Philippine lands, capacity to make a joint will, and others.

Also, a person’s residence or domicile may be considered a foreign element. For example, there are countries that adopt the domiciliary principle as basis of a person’s personal laws. In the Philippines, however, the personal law of nationality (lex nationalii) prevails as the general rule under Article 15 of the NCC. As to residence, matters on election to public office, service of summons, venue of actions, and others may be affected.

In short, as to persons, foreign elements mainly relate to or involve their nationality, residence, domicile, status, condition, and legal capacity.

Foreign elements related to property

The location of property may be considered a foreign element. Its location determines its movable or immovable nature, licit or illicit nature, its modes of acquisition, its ownership and possession, and other aspects of ownership or real rights over it. If, for example, under the laws of Germany, car tires are owned by the State of Germany, all car tires within the territorial jurisdiction of Germany are owned by the state.

Suppose that, under Japanese laws, only the wife is considered the owner of the family’s refrigerator, all family refrigerators within the territorial jurisdiction of Japan are owned by the wife. This and the example given in the previous paragraph are extreme illustrations; they are so ridiculous they would never happen but they are good hypotheticals to guide students in their understanding of private international law.

Foreign elements related to legal relationship or vinculum juris

Persons are strangers under the law unless and until certain factual situations give rise to a vinculum juris or a legal connection between or among them. For example, when one is born, the law creates between the child and its parents a family relationship. Two drivers are legal strangers until their vehicles crash into each other and then one becomes an injured party and the other, a tortfeasor, also called a “wrongdoer,” the latter having incurred obligations to the former.

Contracts and quasi-contracts, also, give rise to obligations between parties and, thus, create a legal relationship between the debtor and the creditor; the bailee and the bailor; the gestor and the beneficiary; the seller and the buyer; the lessor and the lessee; the partners in a partnership; and, among others, the mortgagor and the mortgagee. Without such contract or quasi-contract, or after such obligations are deemed extinguished or discharged, the parties are strangers or third persons in the eyes of the law.

A tort may be committed in a foreign country while the tortfeasor and the injured party are citizens of the Philippines merely sojourning in the former. A contract may be perfected in a state between citizens in a second state to be performed in a third state, containing a choice of law clause in favor of a fourth state. These circumstances are fertile grounds for the seeds of private international law principles to grow.

Foreign elements related to the court

The forum’s location, the seat of the court, is a vital foreign element in conflict of laws. The forum state is the reference point and the forum state’s laws are the starting point of an analysis to resolve a conflicts case. Owing to the principle of lex fori, procedural matters are governed by the law of the forum and not foreign law for regulations on pleading and procedure are within the exclusive control of the court in whose dockets the case is pending.

Obviously, it would result in an absurdity, for example, if Philippine courts will apply the Rules of Court over a Filipino plaintiff but, on the other hand, apply the US federal rules of procedure for the American defendant. Even if US rules on procedure allow a motion to dismiss on grounds of laches, Philippine courts are bound by the Rules of Court which limits the grounds to lack of jurisdiction, prescription, litis pendentia, and res judicata. In fact, this author finds it difficult to imagine any situation in which an exception to this rule would validly or reasonably occur.

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