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The Application Of The Doctrine Of The Most Significant Relationship

Posted on:2008-02-20Degree:MasterType:Thesis
Country:ChinaCandidate:R MaoFull Text:PDF
GTID:2166360215452464Subject:International Law
Abstract/Summary:PDF Full Text Request
The doctrine of the most significant relationship is a new theory in current private international law. It is an important theory in the current private international law, and also a focus and difficult problem that have been heatedly discussed in the academe all alone. Since 1960s, the doctrine has not only profoundly impacted the judicatory and legislative practice of The United States, but also impacted many other countries in the world. The doctrine has been widely applied in the legislation of the private international law or conflict law of almost every country in recent years. The most outstanding contribution of the doctrine lies in replacing the single connecting point with flexible ones, replacing the mechanical and single method of traditional private international law with flexible means of choice of law, in order to better accord with the international practice of civil and commercial relationship. It has been more and more appreciated and adopted throughout the world and has met the more and more complicated international civil economic demand. In the meantime, the doctrine also represents the development trends of private international law in the future. Therefore, researching the application of the doctrine of the most significant relationship has an important sense to enrich and perfect the private international law system of every country especially the conflict of laws system, and to give impetus to the history process of rule of law in every country. Based on the understanding of essential character of the application of the doctrine, the article studied the application of the doctrine in depth analysis.In the first part of this article,I introduced the implication and history evolution of the doctrine of the most significant relationship. The doctrine refers that,when it comes to choose an applicable law in a legal system,all factors concerned with this law must be taken into consideration, and then the closest connection between an area,or a country and the facts, the party of a case should be determined. After its determination, the laws of that area,or country should be employed as the applicable laws for that case. Generally speaking, the theory origin of this doctrine is Savigny's"Sitz des Rechsrer haltuisses"in the early of 1840s. There are some similarities but also differences between the doctrine of the most significant relationship and"Sitz des Rechsrer haltuisses". As they have certain similar in meaning, that the former is a development of the latter. But they two can not be equated. The former is not a copy of the latter. It comes from the developing and dialectical perspective. The doctrine of the most significant relationship does not have a conclusion, and it indicates a way or a method to the destiny. Compared with"Sitz des Rechsrer haltuisses", the doctrine contains many subjective factors. The conclusion of the practice of the doctrine can only be obtained according to a detailed analysis. It is said that the doctrine denies"Sitz des Rechsrer haltuisses". It reflects dialectical negations between them.The judicial practice of the United States and Britain played an important role for the development of this doctrine. Auten v. Auten first denied the traditional private international theory and laid the foundation in the area of contract. Babcock v. Jackson laid the foundation in the area of the tort. The doctrine of the most significant relationship developed in American conflict of laws in 1930s and 1940s,and later came to mature with the push of American theoretical circle and legal practice In 1971,Reese dwelt on it in his book Restatement of the united states, conflict of laws,second. Not until then,the doctrine was officially adopted. In fact,the formation of the doctrine is due to the coordinate force of the outer and inner factors. The doctrine of the most significant relationship initiates a new method to settle law conflicts and make a law choice, which has brought great changes to the method theory of private international law.In the second part of this article, I discussed two characters of the application of the doctrine of the most significant relationship. The first character of the practice of the doctrine is that it is a breakthrough in the traditional private international law. It transfers from the traditional jurisdiction choice to the choice of law rules. Meanwhile, it makes the choice of law clear and flexible away from blind and single. By giving judges discretion, it makes the Private International Law an open system not a closed one. The doctrine of the most significant relationship is a elastic strip of the Private International Law. Essentially speaking, the doctrine is most closely a norm of judge discretion.In the third part of this article,the method of positivism analysis is used to review the legislation of private international laws or conflict laws of main countries, and the application situation of the doctrine in main countries is also introduced. There are some differences in accepting the doctrine in different countries because of the discrepancy in languages, culture and the way of thinking. Some countries view it as the overall guiding principles, such as Austria; Some countries view it as the supplementary principles, such as Switzerland; Some countries use it in the area of contract and tort, such as The United States, Britain and Turkey; Some countries use it only in the area of contract but not tort, such as Greece, France and Germany.In this part, I expounded the important role the judicial precedents of Britain and the United States played in promoting the development of the doctrine. After Auten v. Auten and Babcock v. Jackson, there are many other judicial precedents enriched the area of the practice of this doctrine. Nowadays it practices in many other areas such as personal law, the regional conflict of law, arbitration and jurisdiction conflict.In order to overcome the disadvantages of too much subjective judgment and the lack of certainty of the doctrine, I introduced different ways of trying to overcome the disadvantages of the doctrine in this part. I first explained the different degree and limits of its employment in different countries. Then I believed that across the world, three ways of the administration of the doctrine were most popular: 1.the way in British and American legal system, in which it is the judge who will weigh all the factors to find out the laws concerned to administrate that have the closest connection with the care; 2. the ways of"characteristic performance"in continental legal system; 3.the way of combining the doctrine with a country's sign in the light of 1985'sConvention on the Law Applicable to Contracts for the International Sales of Goods.In the last part of this article, I evaluated the theory of the application of the doctrine in Chinese academics. The doctrine should not be viewed as a guiding principles nor a connecting point of private international law. The doctrine is only a way which guides us make a proper choice. Therefore, it is more closely to view it as an area of method. I also expounded the characteristics of the practice of the doctrine in China. In China, the doctrine is widely employed in different degrees, and the way of its administration is the combination of principle and flexibility. There are many disadvantages of the doctrine employment in China compared with other developed countries. In the end, I gave some suggestions to improve the legislation in China on the doctrine of the most significant relationship.
Keywords/Search Tags:Relationship
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