TRUE OR FALSE FOREIGN ELEMENT ANALYSIS - 29 PJP 21

Date Published:
  1. RECOMMENDED CITATION: DELA PEÑA, Mark Angelo S. (2024), “True or False Foreign Element Analysis,” 29 PJP 21, available at <insert link> (last accessed on <date>).
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The “foreign element” requirement and the need for municipal laws to point to the application of a foreign law are the meat of private international law. Without them, there can be no discussion on conflict of laws.

I humbly submit that the Philippine legal system should adopt a “true or false foreign element” analysis. In a nutshell, it is proposed that it be accepted that there are foreign elements that, at first glance, appear to invite the application of foreign law but, upon closer look, do not actually involve such application.

For example, if Canadian citizens bring into the Philippines a gram of marijuana which is legal in Canada, it will appear, prima facie, that the doctrine of lex rei sitae applies, i.e., that property, whether personal or real, is governed by the law of the place where it is located. In this example, however, a closer examination of the facts reveals that there is no “false” foreign element because the nationality of the Canadians and the previous location of the marijuana are irrelevant to the issue of whether or not they are liable for the crime of illegal possession of illegal drugs.

On the other hand, for example, if a Filipino citizen who owns a kilogram of marijuana deposited in a marijuana bank in Canada, in which country such substance is legal, sells the same to a Canadian citizen touring the Philippines, there is a “true” foreign element. This is because the location of the property and the principle of lex loci rei sitae, including the principle of lex loci solutionis, are squarely determinative of whether the contract perfected in the Philippines should be considered valid and existing.

Furthermore, if a true foreign element exists in a case, the private international law rules of the forum state will find application. Thus, parts of the municipal law that point to the application of foreign law, as may be germane to the connecting factors concerned, will be read and applied by the forum, provided that the existence and contents of the foreign law are properly pleaded and proved. Otherwise, it shall be presumed that such foreign law is the same as Philippine laws.

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