MEANING OF FOREIGN ELEMENT - 25 PJP 21 (2024)
- RECOMMENDED CITATION: DELA PEÑA, Mark Angelo S. (2024), “Meaning of Foreign Element,” 25 PJP 21, available at <insert link> (last accessed on <date>).
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A foreign element is a factual matter that allows the dispute to cut across the territorial lines of two or more countries and invites the application of municipal law that points to the application of the law of a foreign country.
I am aware of the Supreme Court’s ruling that defines foreign element as one contained in a factual situation that cuts across territorial lines and is affected by the diverse laws of two or more states. However, with all due respect to the Court, this definition makes the hasty assumption that foreign laws and municipal laws are “diverse” when, in fact, such diversity, difference, or dissimilarity is not at all an important issue in private international law.
Also, such definition fails to take into account that a foreign factual matter may be present in a case but the same is not sufficient to consider the dispute “affected” by foreign laws. Hence, it is humbly proposed that the term “invites the application of foreign law” or “calls for the application of foreign law” is more prudent and is more consistent with the doctrine of processual presumption.