On The Principle Of The Closest Connection In Torts Conflicts Law

Since the 20th century, the closest connection principle has been widely adopted in China and abroad, and has played an important role in torts conflicts law. The European Union legislation and the Restatement (Second) of Conflict of Law in America have adopted the principle with different legislative models. States of Oregon and Louisiana have developed the closest connection principle into precise and detailed rules in the form of statutes. In contrast, the closest connection principle is not adopted as the principle for general torts in Article 44 of the Act on the Law Applicable to the Foreign-Related Civil Relations, P. R. China, and Article 2(2) of the Act on the Law Applicable to the Foreign-Related Civil Relations, P. R. China has hardly made any room for the application of the principle in the torts conflicts law due to its status of filling in the legal loophole. The thesis, from the perspective of the developments in applying that principle in the European Union and the United States, tries to find more detailed approaches which are needed to make up for the absence of the closest connection principle in the current torts conflicts law.Part One is to introduce the emergence and establishment of the closest connection principle in the field of torts conflicts law. Torts conflicts law based upon the theory of lex loci delicti has been predominant since the 13th century. Until the 20th century, with the development of science and technology, the complication of foreign communication and the functional changes of torts law, lex loci delicti has been challenged by other theories, facilitating the emergence of the closest connection principle. In theory, in light of the achievement of the proper law of contracts, Morris put forward the theory of "the proper law of a tort". In practice, New York State abandoned the rule of lex loci delicti in the decision of the case of Babcock v. Jackson, and started to adopt the closest connection principle.Part Two is to discuss the development of the closest connection principle as an approach in torts conflicts law. In Europe, there are two models of legislation. The first one is to adopt it as a general principle in Austria, and the second is to adopt it as an exception clause in the EU Regulation 864/2007. In the United States, the closest connection principle is embodied in Restatement (Second) of Conflict of Law in America, Article 8 of Oregon’s Choice-Of-Law for Torts and Other Non-Contractual Claims and Article 3515 of Louisiana’s New Law of Choice of Law for Tort Conflicts.Part Three is to elaborate the particular rules involving the closest connection principle. For the determination of lex loci delicti, traditional theories consist of three kinds. Oregon’s Choice-Of-Law for Torts and Other Non-Contractual Claims provides a particular rule, which is consistent with the fairness and justice of international private law. As for the complex torts, although the Proposed Final Draft of the Complex Litigation Project has provided a definite and practical regulation in special chapters, some aspects still requires improvement in terms of issues distinction and interests balance.Part Four is to discuss the legislations and judicial practices in China and to propose suggestions for their improvement. Under the current legal framework, the closest connection principle is functioning merely in the status of filling in the gap. There are several defects in current torts conflicts law such as problems in the determination of lex loci delicti, the problems in the application of Article 2.2 of Act on the Law Applicable to the Foreign-Related Civil Relations, P. R. China, and the lack of limitations on the application of the closest connection principle. With regard to the above defects, the author has put forward some suggestions to improve the current torts conflicts law for the future judicial interpretation.