The Most Significant Relationship Theory In Conflict Of Laws

The choice-of-law theory of the Most Significant Relationship/the Closest Connection/the Most Real Connection/the Most Significant Contact can be defined like this:under the guide of this theory, a court should consider a seires of factors to select the law that has the most significant relationship with the occurrence and parties of an international civil and commericail case. The factors to be considered are:the needs of the interstate and international systems, the relevant policies of the forum and of other interested states/countries, the protection of justified expectation, the basic policies underlying the particular field of law, certainty, predictability and uniformity of the result and ease in the determination and application of the law to be applied. The theory was proposed by Willis L. M. Reese, Professor of Law School, Columbia University in the United States in the 60s of 20th century. After development of half a century, due to its flexibility and inclusiveness, it has been adopted by many legislations and applied in many courts. Hence, it is considered as the most attracting and promising theoretical and practical achievement in conflict of laws in 20th century.The subject of the dissertation is the theory of the Most Significant Relationship. Based on the research of history and content of it, in comparation with others devices in conflict of laws as characterization, renvoi, preliminary question and evasion of law, and on the analysis of many legislations and judicial practices, the dissertation attemps to clarify the status and application of the theory from the conflict of laws persepective. The dissertation is composed of six chapters in addition to an introduction and a conclusion, which contains about 180 000 Chinese characters.The Introduction part outlines the significance of the study, surveys the status quo in this respect, and lists the organization as well as the research methods that will be employed in this dissertation.Chapter I foreshadows the dissertation. It elaborates the background, the main theoretical and judicial origins, and the value orientation of the theory from a historical, empirical and value analysis perspective. The new technology revolution motivated by the electron-information technology has brought great macro and micro impacts to conflict of laws in national legislation, judicial practice and theories. Take for example, the subject, the object and the fait juridique of international or transnational civil and commercial relationship have changed a lot with the development of the technology revolution. Meanwhile, great change has taken place in conflict of laws by the interaction of constitutional law and human rights theory. Hence, in light of such theories as "the seat of legal relation theory", "the governmental interest analysis", and "the five choice-influencing considerations", and the American judicial practice like Auten v. Auten and Babcock v. Jackson, Professor Reese proposed the theory of most significant Relationship. On the analysis of nature of international or transnational civil and commercial relationship and by means of flexible approaches, the theory aims at generalizing rules that reflect uniformity and predictability in order to realize the values of "conflict justice" and "material justice" at the same time from the point of view of an impartial court.Chapter II and III discuss the theoretical issues on the basic contents of the theory and its relationship with some devices like characterization, renvoi, preliminary question and evasion of law in conflict of laws in order to clarify the status and function of the theory. Chapter II is composed of three sections. The first section concludes that on a careful consideration of related connecting factors of a specific issue, a court should choose the specific substantive rule/law rather than a legal system of a country/legal district to be the governing law that has the most significant relationship with the particular issue for an international civil dispute. Secondly, in order to choose this governing law, a court should consider the related connecting factors in a quantitative and qualitative analysis, as well as consider the related parties, countries and social factors in the case unless this process conflicts the sovereignty of the related countries. Finally, the nature of the theory is to choose the best governing law for a particular issue from the point of view of application of law, and to soften the rigid connecting factors for a reasonable and impartial result as far as conflict of law is concerned. As to the theory’s status in conflict of laws, due to its inclusiveness and flexibility, its status should be different according to its different functions. As far as lawmaking is concerned, it is a guide and basic principle to make conflict rules, and as far as jurisdiction is concerned, it is a choice-of-law theory and approach.Chapter III makes further theoretical discussion on its relationship with some devices like characterization, renvoi, preliminary question and evasion of law for exploring the status and function of the theory in conflict of laws. Firstly, the theory can help to solve conflicts of characterization, which can relieve the burden of judges and make sure the governing law having most relationship with the specific issue. Secondly, the theory can help to sovle the problem of renvoi, which can avoid the shortcoming of renvoi and restrict its scope of application. Thirdly, the theory can help to choose the governing law of a preliminary question, which avoid the artificial separation of the main issue and the preliminary problem and get a more reasonable result. Finally, the theory can help to solve the problem of evasion of law. As long as the parties attempt to evade a law that has the most relationship with the specific issue, be it compulsory rule or arbitrary rule, this action can be considered as evasion of law. Generally, it is the basic principle of law-application process:it is not only a choice-of-law theory or approach; it is also a guide to solve the above problems in the process of selecting and applying the governing law.In an analysis of comparative and impirical study, chapter IV, V and VI discuss the judicial and legislative application in the sphere of contract, tort, unjust enrichment, marriage, family and property. In each chapter, the dissertation mainly elaborates such three topics as the theoretical, legislative and judicial application of the theory. As far as choice of law in contract is concerned, the theory is generally a complementary principle to automny of will of parties, and sometimes it is a limit of automny of will of parties, a eacape clause, a residual or a general rule in many domestic legislations. Different courts of different countries will use differen means like depecage, flexible approach and characteristic performance to find the law of the most significant relationship. In the area of torts, it plays as a general rule, escape clause or a general residual in legislation and combination of interest analysis, depecage analysis of conneceting factors in jurisdiction. What is more, the theory is also applied in other areas like family and marriage, unjust enrichment, property law, and so forth. However, different from contract and torts, the theory in such area is not the primary choice-of-law theory/approach and it can simply play a role in the form of general rule or escape clause.The Concluding part reviews the whole content of the dissertation and sets forth some proposition on the improvements for the future Chinese conflicts legislation and judicial practice about this theory. As far as legislation is concerned, some reform should be made by clarifying the status of the theory in conflict of laws, broadening its scope of application, intensifying its legislative forms and regulating its application. As to jurisdiction, a judge should foster the idea of people-oriented, dialectic, fair and just to fullfil the function of the theory.