On The Comparative Impairment Approach And The Implications For China

"Interest analysis approach", developed by the late Brainerd Currie, was once considered a heretical approach to choice of law. Now it has become a new orthodoxy. It originated as a reaction to the rigid rules of the first Restatement of Conflict of Laws; it rests on the idea that in most conflicts only one state will actually be "interested" in having its law applied. It is easy in these "false conflicts" merely to apply the law of the interested state. Currie suggested that in "true conflicts" cases in which there are two or more interested states—the forum should simply apply its own law; this prescription, however, is far more controversial. In order to resolve true conflicts, William Baxter developed the comparative impairment theory; it uses the logic of interest analysis approach on true conflicts and claims in a true conflict; the law applied should be that of the state whose policy would be most advanced, and therefore, the law of the state whose interests would be most impaired if not applied would be applied.During the30years after interest analysis approach was proposed, it has come under sharp attack for having an excessively narrow, and even unconstitutional, conception of a state’s interest in applying its laws. This thesis claims that comparative impairment approach is a powerful theory and avoids most fatal limitations of interest analysis approach. It has been adopted and applied until now in California and Louisiana.Part Ⅰ demonstrates the origin, justification and logic of the comparative impairment theory. Part Ⅱ and Part Ⅲ introduce the judicial and legislative experience of California and Louisiana. Part V summarizes the application of comparative impairment approach and discusses the light it shed on China’s practice in resolving choice of law problems.