1. Chapter 3 Conflict of Laws and Choice of Law Rules
Section 1 Conflict of Laws (法律冲突)
Section 2 Choice of Law Rules (冲突规范)
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2. Applicable law, governing law, law applicable
legal categories范围; connecting factor连结点
Choice of law rules: unilateral rule单边冲突规范; bilateral rule双边冲突规范; cumulative rule 重叠适用的冲突规范; alternative rule 选择适用的冲突规范
personal law (domicile, habitual residence and, nationality)
lex causae – the law which governs an issue.
lex actus – the law governing a transaction, such as the applicable law of a contract.
lex domicilii – the law of a person’s domicile.
lex fori – the law administered by the court hearing the case.
lex loci actus – the law of the place where a transaction is concluded; in relation to the conclusion of a contract called lex loci contractus and to the celebration of a marriage, lex loci celebrationis.
lex loci delicit commissi – the law of the place where a tort is committed.
lex loci solutionis – the law of the place of performance.
lex situs – the law of the place where property is situated.
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3. Section 1 Conflict of Laws
I. Definition
Conflict of laws refers to conflict of territorial laws in a case in which a transaction or occurrence central to the case has a connection to two or more jurisdictions(两个或两个以上的不同法律同时调整一个相同的法律关系而在这些法律的适用上产生矛盾的社会现象 )。
Conflict of territorial laws: what territorial law is applicable in any given case?
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4. At a particular place a lawsuit is to be decided as to the performance of a contract, or the ownership of a thing. But the contract was entered into at another place than that of the tribunal; the thing in dispute is situated elsewhere, and not in the country of the court; the two places have a different territorial law. Besides this, the parties to the case may, in regard to their persons, belong to the place of the court, or both to a foreign place, or both to different places.
Which of the different local laws with which the legal relation in dispute in any way comes in contact, is to be applied in the decision of the question?
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5. Conflict of territorial laws may happen within the same state, between several laws which are subordinate, one to another, or between different independent particular laws. Conflict of territorial laws generally happen between different independent states.
Conflict of subordinate laws within the same state usually shall be settled in accordance with the Law of Legislation which defines the legislative competence of various authorities and the hierarchical effect of their legislations.
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6. For conflict between different independent particular laws within the same state, some states treat it the same way as conflict between laws of different independent states, some states treat it differently by adopting different approaches and rules for the choice of law. In China, we have four different legal systems, as Hongkong SAR, Macao SAR and Taiwan Province have their own independent legal systems different from one another and other provinces of China under the same legal system. Thus, within the territory of China, there exists conflict of laws, which, in practice, is settled in the same way as conflict of laws between independent states.
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7. Though differences also exist between constitutional laws, between administrative laws, between criminal laws etc.of different independent states, it is not necessary to settle the conflict when the cases before the court contains foreign elements, as the court will always apply its own law in cases relating to public laws.
Thus, what private international law tries to settle is the conflict of civil and commercial laws without subordination.
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8. II. Avoiding Conflicts
There are two possible ways in which the conflict of civil and commercial laws between different independent states may be ameliorated. One is to unify the internal laws by adopting international conventions (substantive law method), the other is to formulate choice of law rules to help choosing the proper law (choice of law method).
(1)substantive law method：有关国家间通过双边或多边国际条约的方式制定统一的实体法直接规定涉外民商事关系当事人的权利义务关系，从而避免因各国法律的争相适用而产生的法律冲突 。
(2)choice of law method ：通过制定国内或国际的冲突规范来确定各种涉外民商事关系应适用的法律，从而解决民商事法律适用上的冲突。
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9. Example of unification of internal laws:
The 1929 Convention for the Unification of Certain Rules Relating to International Carriage by Air (the Warsaw Convention);
The Convention for the Unification of Certain Rules for International Carriage By Air (Montreal Convention) of 1999;
The Berne Convention of 1886;
The 1980 United Nations Convention on Contracts for the International Sale of Goods (the CISG).
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10. Examples of choice of law legislation:
Law of the People’s Republic of China on the Law Applicable to Civil Relations Containing Foreign Element;
Switzerland's Federal Code on Private International Law ;
Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I);
Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II);
Convention on the Law Applicable to Products Liability;
Convention on the Law Applicable to Traffic Accidents.
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11. Section 2 Choice of Law Rules (法律选择规则/冲突规范)
I. The Form
The conflict of laws, in so far as it is concerned with the choice of the applicable law, consists of only a small number of rules. These can all be stated in the same simple form, for example:
(a) Legal capacity of a natural person shall be governed by the law of his or her habitual residence.
(b) The substantive conditions for marriage shall be governed by the law of the common habitual residence of the future spouses.
(c) The personal relationship of the spouses shall be governed by the law of their common habitual residence.
(d) Intestate succession shall be governed by the law of the habitual residence of the deceased at the time of death.
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12. These rules can all be analyzed in the same manner
These rules can all be analyzed in the same manner. Thus, ‘Intestate succession shall be governed by the law of the habitual residence of the deceased at the time of death.’ falls into two parts: (i) ‘Intestate succession’ and (ii) ‘the habitual residence’. ‘The substantive conditions for marriage shall be governed by the law of the common habitual residence of the future spouses’ falls into (i) ‘substantive conditions for marriage’ and (ii) ‘ habitual residence’. The parts as in (i) are sometimes called 'operative facts', but a more accurate name for them is, perhaps, ‘legal categories’. They are like pigeon-holes into which the legal issue disclosed by the facts of cases may be placed. The parts as in (ii) are called ‘connecting factors’, since they connect the legal categories to the applicable law.
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13. Rules like ‘legal capacity of a natural person shall be governed by the law of his or her habitual residence’ are called bilateral choice of law rules(双边冲突规范), as the determination of the applicable law in accordance with these kind of rules depends on the connecting factor which may connect the legal categories to the internal legal system or a foreign legal system. In contrast, there is another kind of rules which only connect a legal category to the internal legal system, such as ‘The Chinese-foreign equity joint venture contract performed within the territory of the People’s Republic of China shall be governed by the law of the People‘s Republic of China’. There rules are called unilateral choice of law rules（单边冲突规范）.
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14. II. Legal Categories
The first point in formulating a choice of law rule is to classify various civil or commercial relations or issues into different legal categories.
According to Savigny, there are five categories of legal relations: status of the person in itself (capacity for rights, and capacity to act); law of things; law of obligations; succession; family law (domestic relations) including marriage, paternal power, guardianship.
With the development of civil and commercial laws, the categories are enlarged and refined. Examples?
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15. In most cases, the legal category is concerned with a species of civil or commercial relation, sometimes it is related only to one aspect of the relation as ‘the form of the celebration of marriage’, sometimes it will only be a specific issue as ‘the limitation of liability for maritime claims’. In the United States, since the Conflict Revolution, many courts formulated their choice of law rules on a issue-by-issue basis, which makes the choice of law most complicated and unpredictable.
The differences of legal categories are the first important manifestation of the conflict of choice of law rules between different legal systems, which are also the cause of the problem of characterization, known also as classification or identification.
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16. III. Connecting Factors(连结点)
The connecting factors are used to connect the legal categories to a certain legal system.
Nowadays, there is not only choice of law rules with one connecting factor, there is also choice of law rules with two or more connecting factors.
Therefore, some issues or relationships are governed by more than one system of law, either (i) cumulatively, as: liability for alleged torts committed abroad is governed by both the lex fori and the law of the place where the event took place（重叠适用的冲突规范） ; or (ii) alternatively, as: ‘the form of the will shall be valid if it conforms to the law of the habitual residence or nationality of the testator at the time he made the will or when he died, or the law of the place where the will was made’ （选择适用的冲突规范).
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17. The cumulative application of two laws in the rule of example (i) obviously makes the establishment of liability more difficult and is therefore favorable to the defendant, it also secures the application of forum law.
The alternative application of two or more laws as in the rule of example (ii) is a typical result-orientation rule which connects the issue to whichever law validating the will. Alternative choice of law rule may also serve the purpose of choosing the applicable law one after another, as: ‘The personal relationship of the spouses shall be governed by the law of their common habitual residence; in the absence of common habitual residence, the law of the State of their common nationality shall govern’ .
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18. the intention of the parties？
The connecting factors employed by the conflict of laws are not very numerous. They include the personal law (domicile, habitual residence and, nationality), the place where the transaction takes place (as place of celebration of a marriage or the place of contracting), the place of performance (as in contracts), the situs (the place where property is situated) and the place where the court (forum) is sitting.
the intention of the parties？
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19. The interpretation of the connecting factors?
Since the conflict of laws forms part of forum law, forum law alone can determine when a foreign law is to be applied. It follows from this that forum law must not only select the connecting factor, it must also say what it means. Thus, if both Chinese and Japanese law use domicile as a connecting factor, but by Chinese law a person is domiciled in Japan and by Japanese law in China, he will be regarded by a Chinese court as domiciled in Japan. There is one exception to this general rule, that is，nationality can only be determined by a foreign law if a person is alleged to be a national of the foreign state.
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20. Latin terms commonly employed:
Lex causae – the law which governs an issue.
Lex actus – the law governing a transaction, such as the applicable law of a contract.
Lex domicilii – the law of a person’s domicile.
Lex fori – the law administered by the court hearing the case.
Lex loci actus – the law of the place where a transaction is concluded; in relation to the conclusion of a contract called lex loci contractus and to the celebration of a marriage, lex loci celebrationis.
Lex loci delicit commissi – the law of the place where a tort is committed.
Lex loci solutionis – the law of the place of performance.
Lex situs – the law of the place where property is situated.
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21. 思考题 l．什么是冲突规范？ 2．冲突规范与实体规范有何不同？它是如何调整涉外民商事法律关系的？
3．分析我国现有的冲突规范:范围、连结点、类型及其意义。
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