The Dichotomy Between Substance And Procedure In Conflict Of Laws

This thesis is on the dichotomy between substance and procedure in conflict of laws, which involves both characterization and proof of foreign law in the choice of law process. As an independent regime, the dichotomy between substance and procedure is equal to characterization in Anglo-American conflicts methodology. On the contrary, this is less discussed in continental jurisdictions, where the same problem can be solved as a facet of characterization. The author holds that however structured in theory, the dichotomy between substance and procedure is an unavoidable question in practice, and the point where the line is drawn directly reflects the choice of law theory of the drawer.The thesis is composed of three chapters. The 1st chapter is an analysis of substance and procedure in general perspectives, philosophically, legally , and a step further, from the point of civil law. This analysis purports to find logic and legal supports for the dichotomy of substance and procedure in conflict of laws. The 2nd chapter is the core of the thesis. The origin, the necessity and especially the methods of the dichotomy are discussed in detail in the chapter. The 3rd chapter is a study into dichotomy between substance and procedure in specific disputes, which are limitation, burden of proof and the punitive damages. This chapter serves as a practical operation of the methods of dichotomy in the 2nd chapter. At the end of the thesis, the conclusion is given in the context of Chinese legislation and judiciary practice. The author believes that the dichotomy between substance and procedure in jurisprudence is the result of 2 facts. They are the hierarchical structure of human logical thinking and the increased need for diversified dispute resolutions. As a longtime accepted axiom in conflicts, procedure is governed by forum law. The dichotomy between substance and procedure then has the effect of prescribing the coverage of foreign and domestic law. That is just what the conflicts as a whole answers, so the dichotomy reflects the extent to which the foreign law is applied. Three methods have been used in conflicts history, and the general trend is to increase substantive characterization, for fear of abusive arbitrariness of homeward attitude in choice of law. This can be said a manifestation of the quest for substantive justice in conflict of laws.