POINTS OF CONTACT OR CONNECTING FACTORS - 27 PJP 21

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    Foreign elements may take different forms. In the words of the Supreme Court, the forms in which a foreign element may appear are many.[1] The foreign element may be the nationality or citizenship of one of the parties, their domicile, or the location of the property involved in the dispute.

    Foreign elements may also take complex forms such as when two parties of different nationalities enter into a contract while visiting a third state written in the language of a fourth state, notarized in a fifth state, and containing a contractual choice of law that refers to a sixth state for the renovation of a building located in a seventh state. While the language of the written contract can hardly be considered a foreign element, it may have some effects on the manner of proof required for the same to be admitted in evidence in yet another state. Of course, this convoluted mental experiment is unlikely to happen and the chances are slim but it is used here to drive the point that foreign elements, indeed, may take complex forms, depending on the facts of the case.

    These factors – nationality, place of performance, place of execution, location of property, intention of the parties, etc. – are also known as connecting factors or points of contact. These factors or points of contact will become more relevant in this book’s discussion on the theory of center of gravity.

    At this point, suffice it to say that foreign elements can, it is humbly submitted, be categorized into four: (a) that relating to a person; (b) that relating to property; (c) that relating to a legal relationship or vinculum juris between the parties; and, (d) that relating to the court. For example, under (a), a person’s nationality, residence, or domicile may be a foreign element. Under (b), the location of the property may be a foreign element. Under (c), the contract’s place of perfection, its place of performance, the place of breach thereof, and the place of the tort may be a foreign element. Finally, under (d), the seat of the court may also be a foreign element.

    [1] CHESHIRE AND NORTH, Private International Law, p. 5 by P.M. North and J.J. Faucett (Butterworths; London, 1992).