PLJ Volume 25 Number 2 -01- Jovito R. Salonga - Conflict of Laws - A Critical Survey of Doctrines and Practices and the Case for a Policy Oriented Approach

8/3/2019 PLJ Volume 25 Number 2 -01- Jovito R. Salonga - Conflict of Laws - A Critical Survey of Doctrines and Practices and the Case for a Policy Oriented Approach

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Conflict of Lows: A Critical Surveyof Doctrines and Practices and theCase for a Policy Oriented Approach

(FIRST INSTALLMENT)By

JOVITO R. SALONGA*The arbitrary division of the world into different territorial or

distTict uni ts , each with its own system of law, based on it s pecu liarnorms and stan dard s, implemented by it s own sc heme of law enforcement and a dministra tion , is the operative fact giving rise to problemsin what is curren tl y and conv entiona lly cal led 'private internationallaw' or 'conflict of laws'.l A transaction, a set of facts, or betterstill, an event producing cha nges in va lu es, may touch two or morestates . I f an event or transaction, say a 'tortious act', occurs in StateA, takes effect in State B, and a problem respecting the liabi li ty of thea lle ged actor arises in either of th e two states or in a t hird state, tb.eofficia ls of the latter, whether judicial or ad ministrative, are con


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G()2 PHILIPPINE LAW JOURNALa. are thel'e any limitations im posed by private internationa l

law doctrines? Incidentally, one may pose the questi on whe-ther the di choto nomy estllb lished by traditional writers betwee n 'publ ic intel'nationnl lnw ' nnd 'privlIte international In\\,'I I I that olle affec t . states, and the ot her individuals, is valid.

Th ere are two ways of dealing wih co nflict of laws I)mblems. Them e t h o d o l o ~ o ' followed by man y writers is to treat the s ubj ect mntterin lerms of institutions, s uch as 'contract", 'tort'. 'p roperty ', 'mn l'riage ' ,'divo lces '. 's uccession' and so fO Ith. Here , an attempt is made toII'eat the su bject matter in terms of values. Briefly stnted, the doc -tr ines nnd practices of private intel'llational law are viewed as attempt sto mark out the limit.s nation -states 0 1' district unit s impose upon them-selves in the use of power, and th e peltinent inquiry is made re ga rdin gthe effects of s uch use upon the values with which a free, democraticsocie ty is concerned: res peci , wea lth, congenial personal relationships,rectitude, skill. enlightenment. and w e l l - b e i n ~ . 3

As a br ie f and genera l proposition, a sta te ha s effective controlo n r pcrsons and things wit.hin it s borde ls. Couched in t raditionalInnguu'!{c, one m i ~ h t . perh aps say:

"A so \'e l'ci,l!'n is supreme within his own territory , and,~ , c c d i n g to the univ{;J'sa l maxim of jurisprude nce, he has


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CONfLICT OF LAWS

As stated earlier , one nppropriate role of the technic:d doctrine in.conflict of laws is to set out, by a process of se lf-imposi ti on 011 thepart of the le l'ritorial unit::! COllcel'lled. the limits within which they areto use the control and power they possess 011 persons, things , and.events in the distribution of values with respect to events having effects transcending national boundaries. From this pel'spective, ollesees the relevance of such notions as 'domicile', 'Imtionality', 'territ-oriality', 's itug', 'locus ', and the various derivations from contract, tort ,.or property, howevel' imperfectly such notions may have been :l.])pliedjn concrete fact situations.

To be sure, there are many circumstances u!)on which a statebases the competence of its officials, whether judicial or a dminist.rative, in assuming 'jurisdiction' 1 over persollS and things. Though notexhaustive, the following factors have been invoked:

L the ownership of property, whether 'movable' or 'i mmov able'.in the forum by one or both parties to a proceeding. The AmericanRestatement subjects tangible persomlity with in a to the ju ri sdiction of ils courls in Ihe same way as le :llly.8 The civil la w pl'indple of foru m rei sitae performs the functi on of subject ing clai ms to


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504 PHILIPPINE LAW JOURNALject to any compulsive public international law doctrine, by the forum'spositive law, in accordance with its notion of the interest involved.

3. the factor of domicile, residence and at times even mere presence in the forum. This is particularly true where it is the defendant 's domicile , residence, or presence in the forum which is the operative factor. Italian law, for instance, subjects foreign residents personally served with process within the realm of Italian jurisdiction inrespect. to obligations incurred outside Italy .9 In one-oft-cited American case,lO the defendant, a non-resident enroute from Nova Scotiato New York, was served with process while he was on a Britishsteamer in Boston harbor after she had reached her dock but beforeshe was moored to it , and on the issue of jurisdiction, the Massachusetts court held: "When the party is in. th e state, however transiently,and the summons is actually served upon him there, the jurisdictionof the court is complete, unto the person of the defendant."

4. t he factor of nationality . French courts, for example, havecompetence in every case where the plaintiff is a French national,a lthou gh th e defendant is not a resident or domiciliary, or is not evenpresent in France. l l Italy has similar r u l e s , l ~ inspired mainly byMancini's rhetorical insistence that the persona li ty of the individualis determined by his nationality only, and that "recognition of a personality is possible only by way of a recognition of his nationality ."To a very l i ~ i t e d extent, the United States uses the fact of member


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CONFLICT OF LAWS 505mayor may not be exaggerated depending on the forum's appreciationof what value events 01 ' factual transactions are sufficient ly invested with public interest as to warrant community intervention .

In the case set forth earlier in this discussion, the officials ofState A or of State B, or of a third state, may, by reason of the presence of one or more of the factors j ust noted, decide to assume 'jurisdiction' of the case which, as s tated touches States A and B. Whichlaw will they apply in determining the rights an d obligations of theparties to the case? As previously stated, the officials, in assumingthat the community should intervene in the case, may choose to applyon ly its internal rules, that is to say, those rules which they wou ldapp ly to a si milar but purely domestic case. Despite the stubborninsistence of noble-intentioned internationalists, particularly in the19th century,!5 who maintained that judicial jurisdiction among statesis and should be regulated by some international law rules, there isnothing to show that if the officials of State A for example, applyA's internal rules to a conflict of laws prob lem a violation of someinternational law do ctrines will thereby result .

Fortunately, no such arbitrary application of internal rules inevery conflict of laws problem has been systematica lly carri ed through,though one may probably be warranted in making the ge neral observa


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506 PH iLIPPINE LAW JOURNALhow, when considered proper, a mechanism for arnvmg at the application of t he internal law of the forum can be manipulated with combined finesse and effectiveness. Many American courts reject therenvoi theory because of the logica l fa llacies thought to under lie it , butas poi n ted out in one artilce,H) it could very well be used for uti litarianpurposes. Similarly, the excessive application in Continental countries of the conception of ordre public, which has evoked widespreadcriticism from jurists of every school and creed, has found somewhatsustained growth in t he Anglo-American phrase 'public policy'. Conceded ly; both t he use of t he renvoi mechanism and of this slipperyphrase has in many cases served to atta in some goal in view. What isbeing suggested in this paper, by way of an anticipatory remark, ismere ly to define and clarify whatever relevant policies a forum shou ldendeavor to up'ho ld, and thereby induce intelligent thinking in thehand ling of whatever mechanism or doctrine there is to attain thosepolicies.

In spit e of the ava lanche of cr iticism, some valid and others frivolous, wh ich have been leveled aga inst such concepts as 'comity','vested r ights', 'renvoi', 'incorporation of foreign law', and 'l,egislativej ur isdiction', one shou ld not overlook the consideration that al l thesedoctrinal propositions and the legis lative enactments they inspired,are but manifestations of a conscientious, intelligent awareness that


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CONfLICT OF LAWS ,'i07

The verbal symbol 'injustice' is, in a manner of speaking, a tOil-levelabstraction, but olle pressed fo r an operationa l spec ification of whathe means by 'injustice' might perhaps stale that injustice resu lts whellt!ver there is an undue deprivation of. or an exclusion from aC(,(>!l9 to,the hasic sO('i al va lues,

Th e concept of va lues in conflict of laws has disturbed some autho-rities. One eminent writer. for instance, has exp ressed the fear tha t" subservience to subjective and local values would be dangerous andunsound as a general policy."!1 I f the concept of values is diiltu rb-ing to them, they may take some comfo lt in the thought that the chuosexisting in the conflict of laws, admittedly unparalleled in any other(lepartm ent of law ,'22 is caused by the stealthy smuggling by judgesof their own value preconceptions even as th ey decide cases within thenal'row, unrealistic framework of technical myths, What is beingpointed out he l'e is that such unbecoming disorder ill a field avowedlyI:onsec ra ted to the mission of arrangement and order, is hound to continue and flou r ish, u nless:

1. Ihe values at stake in every representative transaction, relationship, or event (conventiona lly dealt with as 'tort', 'contract', 'domestic relations', 'property', 'succession', 'business units' ) and the varying deg rees of communi ty interest are brou ght out and continuallyclarif ied;

2, efforts are exel'ted to discover and increase common perspec


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508 PHILIPPINE LAW JOURNALencumb el'ed with a vlll'iety of connotations-district units, in decidingconflict of laws problems. There is a decided merit in co mparin g andeontrasting' ways of solving similar, if not identical, pl'oblems; for,however inaccurate the terms 'private international law' or 'conflictof laws' may be-indeed, a professional foible among experts in thefield is the intractable practice of displaying the particular labelattached 10 the su bject r.s an anachronistic oddity- and may notescape the suggestion of the ideal suggested, namely. that the conflictrules of diffC l'cnt district units should possess a cos mopolitan outlook,free from the costly burden of sentimental provincialism. The sta temellt is very often heard that th e world has grown smaller throughthe fruitful exploits of technology, But that social control throughlaw has advanced coextensively is a point of dubious vali dity , Thept'esent study seeks to show that many of the genel'ative concepts ofthe past haVe served their term , that th eir inconsistencies hamper ourthinking, and that t.hel'e is a need for as king new questions, if onl ,ybecause we have a different set of answe r s,

It is unfortunately true that involve ment in meticulous detai lwith a particular topic in the co nfli ct of laws has the disadVantageof isolating one's self from the central problem of the whole subject;on the other hand, there is the danger of being supe rficial when thelIttempt is made to reduce the entire subject. to so me convenient, haney


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CONFLICT OF LAWS 50!'I

Probably the most typical problem in conflict of laws respectingdomestic relations are those relating to marriage and divorce. I t isin this field where we encounter one of the most extreme manifestations of an ethnocentric tendency not only to regard domestic rulesas matchless in their moral justification but also to draw a line ofdistinction between the in-group and the out-group. Despite formalclaims made by every court in a territorial unit that it will exert everyeffort to sustain the validity of a marriage relation , thel"'e is almostunanimous acquiescence in practice in the proposition that "marriageis an institution which closely concerns the public policy and thesocial morality of the state." 23 The question, therefore, which presents itself is: which territorial uni t, when a set of facts supposedlyconstitutive of a marital relation touches two or more territorial units ,is entitled to exact compliance with its code of morality?

Let us take a concrete case,'2.4 decided by the Supreme Co urt ofTennessee. A white man was indicted for living with a colored wo-man as his wife. The facts disclosed they were married in a statewhere marriage between colored and white was va li d. Sometime afterthe marriage ceremony, they removed to the State of Tennessee, wherethe indictment was presented. The doctrine, still prevailing in thiscountry, is that a marriage good where celebrated is good everywhere.


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510 PHILIPPINE LAW JOURNA La Mohammedan will establish his harem at the doors of Tennessee,may be ld t as an exc lu sive prerogative to those who overestimate thecapacity of other legal systems and of other peoples.

In the Uni ted Sta tes, the r ule is that a marriage vaJiid where celebrated is va lid everywhere. This is substantially the position of

the American Itestatement."Sec. 121. Except as stated in Secs. 131 and 132 (re-lating to polygamous and incestuous marriages), a marriage isva lid everywhere if t he re quirements of the marr iage law

of the sta te where the contract of marriage takes place arecomplied with."This, to be sure, is in keeping with the doctrine of the statutists,

according to whi ch the lex loci actus governs not only the form of anycontract but a lso its essence. The rule is accepted by a number ofLatin American states, notably Argentina, Paraguay, Mexico, Vene-zue la, Guatema la, and has been adopted by the Montevideo Convention.

Walter Wheeler Cook's contr ibution in this field is to show noton ly the indefensib il ity of the application of the rule but also its sadlack of any concern for social policy, although he does not tell us indetail what t hat pol icy should be. The consequence of the r ule wasto promote, in many instances, evasion of the statute of the domicile


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CONFLICT OF LAWS

a. the respective claims of the parties to the case.b. what was the partic ular issue involved, since it is

now clear that while a marriage may be declared 'void'in order to discourage further cohabitation, it ma ystill be 'valid' for purposes of descent and succession,support, and similar purposes.

c. whether there was any element of evas ion of the lawof the domicile and the degree of importance attachedby the particular forum to the requirements imposedby tha t law in the particu lar case.

511

One might probably arrive at the conclusion that there is no consistent policy towards marriage, and that the so-ca lled prevailingdoctrine of lex loci celebrationis, while compulsive to so me judgesconcerned with what has been rhetorically called 'legal symmetry' isonly adhered to in other instances at the forum's pleasure. No doubt,there are t hose who would assert that American conflict rules may besummed up thus: that fundamental disabilities are controlled by thelaw of the domicile, and that non-fundamental disabilities are governled by the law of the place of celebration . The observation, however,begs the question and only serves to preserve confusion. What is


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512 PHILIPPINE LAW JOURNALparties ~ h a l l be respected wherever the marriage is concluded; no stateshall disregard such an impediment as contrary to its own public policy.But this rule was soon to be repudiated . Under German law "militarypersons" may be married only with the consent of the military auth-ority, and this was made applicable to the numerous German deserterswho escaped into Franc,e or Belgium and wished to be married there.The French and Belgium authorities were debarred by the text of theConvention from allowing the conclusion of such marriag,es on theirrespective territories. I t did not take a long time for France andBelgium to withdraw from the convention.

What th en are the prospects of a really private international lawin respect to marriage ? There are some bright spots, to be sure, thoughthe area of confusion and conflict is still vast. In so far as the formalrequil'e ments of marriage are concerned, we may do well to considersome rules widely shared:

1. the almost general rule is that a marriage celebrated withinthe territory of the forum is invalid, unless the formalitiesprescribed by the matrimonial law of the forum are satisfied.Foreigners and citizens are equally entitled to the forms ofmarriage provided by the forum, and no other forms areallowed. 292. practically all states, exc,epting those which require a religiousmarriage for their nationals abroad, recognize as valid a foreign


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CONFLICT OF LAWS 513end by applying the personal laws of the two contracting parties andthe law of the place of ce lebration at the same time. This was initiatedby the Mancini school and embodied in innumerable cod'es. So in-superable were the difficulties encountered and so impractical was theadministration of the system as a whole that the Prussian Ministryof Justice told the legal committee of the Diet in 1929 that the diffi-e ul ties of ascertaining the capacity of foreigners to marry had in-creased to a disturbing ,extent after the first World War, strange re-s ults were occasioned by exotic religious laws, and that the principleof nationality was far from furnishing the certainty it was supposedto gualantee.31

Both the American rule and the nationality rule, if pressed to thelimit. can produce results admittedly absurd. I f A and B, visitorsfrom Italy, stay fo r the minimum time required by the law of an Am-e rican state to contract marriage, the question of the validity of themarriage relation will be determined exclusively by the law of the statewhere they happen to stay for a day or two. On the other hand, anAmerican national may be domiciled for thirty years in Italy, but hiseapacity to marry at a ll, 01' to marry a certain person, will be deter-mined by Italian authorities by looking to the law of some unremem-bered ancestor. As aptly said by an authority:

"One system is as abusive as the other. A state shouldnot want to join foreigners in marr iage utterly disregardingtheir home laws. Nor should a state, usin g the dubious test


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514 PHILIPPINE LAW JOURNALThus, in one state court, the .wife of a Mohammedan marriage was

held entitled to the compensation of a widow und,er the Workmen'sCompensation Act, where her husband had not taken to himself thethree additional wives he was permitted to have by Mohammedanlaw.

Many solutions have been put forward by writers to solve whatone has aptly called the "conflicting chaos of decisions" in this field.In so far as the question of substantive requirements for marriage isconcerned, Rabel 33 would have the personal law of the parties governfor a certain period after the parti,es change their domicile. Marry-in g after this time, they would be subject to the law of the place ofcelebration alone, with effect also in their home countries. WalterCook on the other hand contends that it is neither th e place of celebration, nor the technical domicile of the parties, that has an y substantial interest in the marriage relation, but the intended maritaldomicile . He beli,eves that the application of the 'law' of the intended family domicile will in all such cases "result in a solution of theproblems involved which is in keeping with a sound social policy",34though he does not tlell us exactly what is the social policy to be sustained. Cook's solution would be tenable if the parties are well advised on what is the 'law' of the future domicil,e, for otherwise wemight well have the situation presented in the Tennessee case previously considered. Rabel's solution envisages a divining red metho


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CONFLICT OF LAWS 510with a particular case. The case of Hadd1lCk v. Haddock,u althoughnow overruled, is important if one desires to ge t an inkling of theearlier cases presented to the Supreme Cour t on the quest ion of juri s diction to grant divorce. That case, and th e eal"iier cases, stood forthe proposition that where the husband sued in another state afterth e Wrongful abandonment of his wife, he did not have in that stateth e so-called 'marital res'. and the court had therefore no competenceto deal with the case, and if it rendered a divorce decree under thosecircumstances, the decree was not entitled to full faitb and creditby sister states. In short, the Supreme Court decided that th e e lementof fault was a jurisdictional question. I f one spouse left the matrimonial domicile , and sought a divo l'ce, the other spouse not beingpersonally served, other states could reexamine the fact of who wasth e wrongdoe r . I f they found that the one who so ught the divorcewas the wrongdoer, suc h divorce decree was not entitled to full faithand credit. The cIIse meant necessarily that if the husband mar r iedimmediately after the grant of divorce in th e state where th e decreewas granted, he wa s under the obligation to live with and sU llporthis second spouse; but elsewhere, he was under the obligation to livewith and support his first spouse. Th is was the law until the caseof North Ca rolina v, William.!!,36 decided only a few yea l's ago by theUnited States Supreme Court. In that case, 11-1 and W-l (husband andwife ) were domiciled ill North Carolina, and so with H-2 and W-2{likewise husband and wife ). H-l and W-2 went to Nevada, soughtdecrees of divorce fl'om their respective spouses. which were gnUltedon mere publication of notice. in each case, to th e other spouse. H-1


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516 PHILIPPINE LAW JOURNALit found that the assumption was not corr ect. The Supreme Courtof the United States , in the second Williams case,37 held that theNevada decree was a concl usive adjudication of everything except thejurisdictional facts. Since domicile was a jurisdictional fact, theNorth Carolina court could reexamine the question , and if it foundthat H-l and W-2 were not really domiciled in Nevada, it had the perfect right to r efuse recognition to the Nevada divorce decree. Mr .Justice Rut ledge suggested in his dissenting opinion that the secondWilliams case merely led back to the rule of Haddock v. Haddock, andthought that the Supreme Court shoul d lay down a rul'e of thumb ondo mi cile and jurisdiction, for otherwise, overhanging reversals by sisters tates wou ld continue unabated. North Carolina, by the second Willi ams cas'e, could a lways inquire not only into the fact of domicile butinto the 'state of mind ' of the indiscreet un sophisticated defendants.What the first Williams case held, namely, that a divorce decre,e isvalid so lon g as one of the parties is nullified by t he holding in thesec ond Williams case to the effect that s is ter states may in quire intothe subject of 'domicile' in the divorc in g state. The question presentsitself: sh ould th e cr iterion of domicil e be based entirely on the divor ce fo rum's concept ( i.e ., Nevada in t his case) of domicile, or shouldit be based on the concept of domicil e. by other states, which mightbe too seve re? Here, as elsewhel'e, courts are able to use the samete rms and come out with different results. The sugg.estion may beput fo rward that there should be an objective standard in cases of this


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CONFLICT OF LAWS 5]7mulae is not anarch; the difference is not between a system and n otanarchy; the differenc'e is not between a system and no system, butbetween two system's; between a system which purports to have, butlacks logical symmetry, and one which affords latitude for t he inter-play and c la sh of confli cting policy factors." 40

Let us now attempt to ma,ke a brief comparative survey of th edivorce laws of different countries. The Catholic rule that marriag'ecannot be dissolved except by death still prevails in Argentina, Bolivia ,Brazil, Chile, Columbia, Ireland , Ita ly, Paraguay, Spain , and in someparts of Eastern Europe an d the Middle East.41 In other places,such as New York and the District of Co lumbia , divorce may only besecured on the gro und of adultery. This rule was modified in the casesof the Philippi,nes, where under the old Divorce Law any of t he spousesmay obta in a divorce on the ground of adultery on the part of the wife,and of conc ubinage on the part of the husband, provided the erringwife or husband was convicted therefor in a final judgment. Therecently enacted Civil Code of the Philippines does not permit abso lu tedivorce, although it recognizes lega l separation. At t he other ex-treme, we have the rule in Soviet Ru ss ia which allows ea ch spouseto terminate the marriage by unilateral declaration , a nd t he kind ofpatriarchal repudiation in Egypt that transpired not so long ago. "TheOld Testament right of a sovereign head of a household, the Sovie temphasis on freedom of marriage and the readiness of American courtsto provide divorce," says one wl'iter,42 "are certain ly heterogenou s


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518 PHILIPPINE LAW JOURNAL

undesirable. I f every decree of divorce granted by a state court mustbe accepted blindly by the courts of every other state, the resultingcertainties may have many unfortunate repercussions ." These twopolar extremes are undesirable, indeed. Exactly when th e claims ofcountries following the national law principle will be relaxed, and theirresponsible attitude with which the lex fori is app lied in other coun-tries will be renounced, will remain fo r many years a question thatwill be hard to answer. Prof. Rabel 44 in examining the doctrines andpractices of civil law countries, arrives at the same conclusion sharedby American writers on the unhappy state of American law. Here isa field in which both th e lawyer and the expert on social sciences canformul ate rational solutions to the end that th e goal of preservingcongenial personal relationships, along with the maximination of theother basic values involved in every type of problem in this field. maybe achieved with th e least friction and waste .

44 Rabel, op . ci t . Chapters II and 12 .

Documents

PLJ Volume 25 Number 2 -01- Jovito R. Salonga - Conflict of Laws - A Critical Survey of Doctrines and Practices and the Case for a Policy Oriented Approach