On Typology Of Torts In Conflict Of Laws And Their Choice Of Laws

As a basis for the analysis of the problem of torts choice of law, a typology oftorts in conflict-of-Laws was brought forward in this paper, which was based on threekinds of connecting factors in choice of laws by the relationship between which andthe effective range and policies of torts substantive law. Besides an overview ontypology of torts in conflict-of-Laws in chapter one, the discussion was mainlyfocused on three major aspects.The first major aspect is the theoretical premise on which the analysis ontypology of torts in conflict-of-Laws was based. Three basic questions for analysiswas focused on.First, the significance of sovereignty in choice-of-laws. The question of that howdoes sovereignty be embodied in choice of law, was systematically disucssed by noone, although sovereignty has been taken as granted the basis in conflict-of-laws fromthen on when the comity theory was put forward by Ulrich Huber early in17thcentury. In fact, three major aspects was embodied in choice of law by thesignificance of sovereignty, namely, one is the effective scope of substantive law interritory and persons which derived from territorial and personal authority ofsovereignty respectively, the former of which has been taken as the sole ground thattraditional choice-of-law theories based on while the latter of which began to attractattentions only after the introduction of “governmental interest analysis” by BrainerdCurrie1960th. Even so，territorial and personal factors of torts relationship on whichthe methods(or rules) based to choose torts applicable law are only the formal aspectsof sovereignty. Another is the purposes or policies embodied in substantive law bylegislators, which include both territorial and personal aims in regulation andprotection, only the implementation of which in conflict of laws rules that is theessence of sovereignty. The last is internal and international Conflict and coordinationof sovereignty. As member of international community, sovereignty has to have theircore interests and policies be maintained, but need to reduce conflicts and keep inharmony with others as well, so they must be self-restrained and try to keep in line with the world wide common values and practices.Secondly, significance of civil society in choice of law. As the spirit of civilsociety is autonomy on private right, and civil society is of fundamental significancewith regard to the relationship between sovereignty and civil society, autonomy inprivate rights is independent to sovereignty. However, civil society is inseparablefrom sovereignty of their laws, for sovereignty is a product of social contracts whosepower was authorized by people through the social contract and for maintenance ofthe order of civil society depend on law, so that autonomy was limited to the reservedscope by social contract to private parties and shall not prejudice to the interests ofthird parties. Autonomy means the individuals can dispose their private interests andrights, a natural conclusion is that they have the right to make an agreement onchoosing applicable law to govern civil relationship between them.Lastly, legal pluralism. Globalization promote legal pluralism，but is not the root.legal pluralism includes pluralism of both official and non-official laws. Thefoundation on which laws are to come to life is that there is an social communitywhere there is a common system of rules to be abided by it’s members, suchcommunities include those which be based on territory and permanent populations,and the others which be solely based on a group of people without territory, so thatlaws of the former communities such as sovereignty states performed in a territorialand personal scope while the later only among the members. Personal effective scopewas enjoy by all kinds of laws as a common nature. Every one has multiple personalidenties of commnuities to which common personal connection become more freguent,so common personal identites could be an important base for torts choice of law, asGuzman has said. Such personal identies could be a citizenship or resident of a nation,or a merchant, businessman, netcitizen and so on of non-national state, or even amember of a family, a passenger of a plane, a party in a stable contract relationship.The above premises provide the base for all of the three connectors inchoice-of-law, namely, territorial contact, personal contact and party autonomy; andthese are the three elements to be rely on in torts choice-of-law.The second major aspect is division of torts and it’s definition in conflict of laws. The classification of tort in substantive law is mainly based on object and principlesof liability attribution, which reflects the basic features of substantive law, whiletypology of torts in conflict-of-Laws can only be according to the relationshipbetween substantive law and torts which was choice-of-law based on, and where thetypology of torts start. This paper discussed the types of torts in conflict of laws intwo aspects.First is criterias for the division of torts in conflict-of-laws and the basic types.As the effective scope of substantive torts law is the premise for that law to claim forapplication in foreign-related torts, the purposes and policies included in that lawprovide important bases on which the necessary connecting factors for application ofthat law are needed while the torts do include such connections. So we gave thecriterias as fellow, that is, the types of connecting factors, the nature of substantivetorts law, purposes and policies of the law and the actual applicable law, according towhich three basic type of torts in conflict of laws was given, namely, territorial torts,personal torts and autonomous torts, in addition with a mixed torts.The second is a detailed discription on how to define these four types of torts.The key questions to be answered in torts typology are that every torts relationship orit’s issues are attributed to which of the types. There may include territorial, personalor autonomous elements in a same torts relationship simultaneously, which of themshould be relied on to choose the applicable law? These is the questions aboutcriterias for the definition of torts types in conflict-of-laws, which include threereguests, that is,(1) effective scope of substantive laws, for example, substantive lawsmust be effectively applicable in a certain terriory with regard to territorial torts.(2)there must be some elements of torts civil relationship to contact with the scope ofsubstantive laws, such as that the parties of the civil relationship enjoy a commonpersonal law in a certain jurisdiction. Of course, the above two reguest should becombined into one that the freedom to choose the applicable law in the type ofautonomous torts.(3) such elements should be recognized as connecting factors inchoice of the applicable law, while in mixed torts, connecting factors would be acombination of different type of them. As for why certain element(s) be chosen as connecting factors in choice of law, further considerations should be given to thefellow auxiliary basis, they are,(1) nature of torts substantive laws, for instance,mandatory provisions should generally be applied exclusively by the forum statecourts, so the tort or it’s issues be governed by such provisions be territorial in nature.(2) purposes and policies of substantive laws, which include indications of thelegislatiors on whethe their substantive laws should govern the foreign-related tortswith certain connections to their jurisdiction.(3) nature of tort relationship insubstantive law, such example as, ontological issues of intellectual property torts canonly be governed by the law of the country for which protection is claimed(lex lociprotectionis) for the reason of territorial nature of intellectual property, while issues ofcompensation could be governed by a law chosen by the parties.(4) exclusion ofother elements as connecting factors in choice-of-law, it is to say, applicable law ofpersonal torts should not base it’s choice on territorial elements.In addition, there is a general priority of these four types of torts in choice of lawprocess, the order is listed as: autonomous torts�'personal torts on common personallaw�'mixed torts�'territorial torts or personal torts on personal law of one party.The third major aspect is a torts typology analysis on torts choice-of-law rules inthe legislation(or cases) of China and other countries. On this aspect, torts typology inconflict-of-laws was analysised in two parts with regard to general torts and specialtorts choice-of-law rules respectively.In the first part is a comparative analysis on torts choice-of-law rules inlegislations or cases. Choice-of-law rules of general torts and three special torts (ie.products torts, unfair competition torts and personality torts) was especially chosen todiscuss in this part.In the comparative analysis on general torts Choice-of-law rules, we can find that,(1) types of torts in conflict of laws that can be identified by different countries arediverse, because that in some countries can only territorial connection of torts berecognized, while in others some or all of the territorial, personal or autonomouselements be recognized of the significance in choice of the torts applicable law, and (2)there is a new trend in torts choice of law legislations that autonomous torts and personal torts on common personal law are prioritized for the choice of tortsapplicable law, and (3) implementation of the purposes and policies of tortssubstantive law gains increasingly it’s importance in torts choice of law.While in special torts, they are those that,(1) interests of the sovereign stateshave become manifestly an important policy consideration in torts choice of lawlegislation, and (2) the significance of purposes and policies to the effective scope oftorts substantive law, so that to choice of the connecting factors in choice of law rule,was more evidently expressed than in general torts, and (3) for the purpose ofimplementation of the said policies and interests, it was carefully considered on thechoice of connecting factors thus on the identification of factual torts relationship orit’s issues as one of the types in conflict-of-laws, that the actual results of thecombination of connecting factors in choice of law rules to promote the goals on thepolicies and interests.In a word, they are the key considerations in the choice of connecting factors andtorts applicable law of purposes and policies of torts substantive laws in the process ofdefining each of the torts relationship or it’s issues as one of the types inconflict-of-laws according to the factual circumstances of the cases.In the second part is analysis on the Law of the Application of Law forForeign-related Civil Relations of the People’s Republic of China (2010) of it’s tortschoice of law rules, especially those of general torts and three special torts (ie.products torts, personality torts and intellectual property torts) was discussed. Theresult of a typology analysis as put forward in this paper is that, although the tortschoice of law rules in the latest legislation in China have adopted the "advanced"theories and legislative experience in developed countries, they are not so suitable tothe realities of china to better achieve the purposes and policies of our substantive lawand the interests of our country.