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The Latest Development Of The Restatement Of Conflicts Of Law In America

Posted on:2006-04-16Degree:DoctorType:Dissertation
Country:ChinaCandidate:C Z WangFull Text:PDF
GTID:1116360182965690Subject:International Law
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In response to a perception of excessive complexity and resultant uncertainty in American law, the American Law Institute (ALI) was founded in 1923 following a study conducted by a group of prominent American judges, lawyers, and scholars. The Institute's first endeavor was a comprehensive restatement of common law. Conflicts problems have a special urgency and difficulty in a federated nation, so ALI selected and restated the area of Conflict of Laws in the First Restatement series. After reviewing the development process from the First Restatement to the Second Restatement, the doctoral dissertation tries to reveal the latest development trends of the Restatement of Conflicts of Law and to provide some references for our conflicts legislation.Desiring the above purposes, the dissertation specializes the topic divided six chapters except for the introductory chapter.The introductory chapter points out that the United States of America has played a role of pioneer in the development history of modern Conflicts of Law. The theory and practice connected significantly in American Conflicts of Law from the First Restatement, "Conflicts Revolution" to the Second Restatement, which attracted most scholars' attention from all over the world.Chapter I introduces the restatement approach which has been used by ALI to unify the Conflicts of Law in America. In fact, the course of unification of laws actually reflected the development course of the positive law in America, which was driven by nongovernmental power to some degree, Doubtless ALI is one of the leading powers, which broke a new path to unify American law through the systematization of common law. Based on the introduction of ALI, the dissertation starts to discuss the development course of American Restatement of Conflicts. The Institute selected the areas of law carefully and appointed the competent reporters to draft the restatements. Professor Beale drafted the First Restatement of Conflicts based the theory of "Vested Rights". But, the abstract and assumptive character of the First Restatement was greatly antipathetic to the rising pragmatism during the conflicts theory. So, the First Restatement was doomed to failure.Chapter II analyses the background of the naissance of the Second Restatement and its implementation in judicial practice. The Second Restatement focuses on Art.6 and the principle of "the most significant relationship" as well as the escape clauses. This is an enormous effort in what many lawyers still regard as an abstruse, elusive subject.The point of view developed in Second Restatement has already had constructive influence on their solution by American courts. That influence will surely grow in coming years. Whatever its academic critics may think, the Second Restatement is working about as well as can be expected. But, the very vagueness and open-endedness for which the Second Restatement is criticized are enabling judges to follow their good sense and intuition to reach reasonably sound results. America needs a set of new choice-of-law rules to resolve and avoid the chaos when the courts apply the Second Restatement to choose the applicable law.Chapter III deals with a third restatement, which is under discussion among American conflicts scholars. After the midterm of the 20th century, more and more scholars analyzed anew the theory on choice-of-law "approach" and gradually realized the importance and advantage of conflict "rules". Although the Second Restatement is welcomed by American courts, there are some gaps in its structure and content. In order to develop modern territorial conflict rules, the scholars proposed to combine the traditional conflict rules with flexible choice-of-law approaches. The theoretic change leaded to the latest appearance of homeward trend of conflict rules in America. At the same time, a discussion on a third restatement of conflicts of law was held between the practical and academic level, which seems like another conflicts revolution. Not all scholars went along with a third restatement. Some rejected a restatement approach for conflicts and some questioned whether the time is right for a new conflicts restatement. Others more receptive to the prospect of a third restatement differed over what they would like to see: rules as opposed to method, method as opposed to rules, governmental interest analysis, avoidance of governmental interest analysis, substantivism, or avoidance of substantivism, etc. In order to reflect the experience from the "Conflicts Revolution" and construct a new type of choice-of-law rules, Professor Symeonides provided his proposal for tort conflicts.Chapter IV discusses the evolv'ement of methodology in American conflicts restatement from the nomological point and especially emphasizes the positive analysis and comparative law methods in American conflicts restatement. The dissertation probes into the methodology's developing process in conflicts restatements, and then tries to reveal the development trend of conflicts restatements. From the technical level of methodology, the First Restatement paid more attention to normative analysis, whose failure indicates that the monistic methodology does not good to the health development of conflicts of law. On the contrary, in the Second Restatement, Professor Reese skillfully handled the positive analysis and individualism method. He attached more importance tothe justice of individual case in conflicts, which reflected the dualism of methodology. Professor Symeonides' proposal for tort conflicts incorporated the individualism and integrationism and pointed out the value orientation of tort based on the positive analysis. The choice-of-law rules in a third restatement will be designed in this way. The key factor of a successful third restatement is the balance of the flexibility and certainty of conflicts.Chapter V deals with relationship between American conflicts restatement and European Private International Law. Reviewing and summing up the development of European conflicts law in the half past century, we can see that its conflicts theory has experienced the turmoil and the gradual transformation and the codification. During the process, European conflicts of law has been influenced deeply by "Conflicts Revolution", which could be revealed by the appearance of the doctrine of "Lois d'application immediate", escape clause in the statutes and choice-of-law rules with substantive elements, etc. Now, the double coordination between conflicts law and substantive law is the notable character of European conflicts law, but the European doctrine in the field of conflicts law still stays under the spell of Savigny. The territory limit on rules of law is the eternal topic in theory and practice in European conflicts law. The developing trend of modern conflicts of law in Europe is to spurn the dogmatism and seek the scientific flexible approach.Chapter VI talks about the legislative and judicial revelations that we could obtain from American conflicts restatement. It spreads from three aspects: legislative model, choice-of-law approach and conflict rules. Theory study of conflicts should provide guidance for legislative and judicial practice. The development track of American conflict restatement reveals the eternal hankering and effort for the balance of certainty and flexibility of law. American conflicts restatements changed from certainty to flexibility, which seems from an extreme to another one. Now, eclecticism is very popular in American conflicts of law that has gained much more certainty, at the same time, and reserved more flexibility. American conflicts of law is trying to find the new balance between them. China's future legislation of conflicts should try to span the development phase of the Second Restatement, and construct modern new type of choice-of-law rules under the existing legal system. As a reslult, we could make great efforts to realize the goal - the perfect combination of certainty and flexibility.
Keywords/Search Tags:conflicts of law, American conflicts restatement, choice-of-law approach, conflict rules
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