A Study On The Perfection Of The Supplementary Function Of The Most Significant Relationship Doctrine

The Most Significant Relationship Doctrine(hereinafter the “MSR Doctrine”),also referred to as the center-of-gravity doctrine,is a principle of conflict of laws which says the court of the forum should apply,after taking into consideration all connection points in relation to a disputed matter from both the quality and quantity perspective,the law of a jurisdiction where the center-of-gravity of that disputed matter lies and thus being the most interested in that disputed matter.This MSR Doctrine is the most remarkable results of the American Conflict Law Revolution,and one of the most creative and practical tool for choice of law,and the core and soul of Private International Law.The MSR Doctrine has three relatively independent contents,namely the relation theory,the correction theory and the supplementation theory.The Supplementation theory applies when a court is unable to locate the governing law under currently effective conflict law rules,and authorizes that court to apply the law having the most significant relationship with the disputed case.The MSR Doctrine is famous for its elasticity,which injects certain flexibility to the choice-of-law process and allows the court to make up for certain lawmaking vacancies.However,flexibility does have its pros and cons.For the absence of specific application rules,the discretion of the court must be relied upon for the MSR Doctrine to play out its due functions,and it is very likely to prejudice the certainty and predictability of law.Supplemental function is one of the main function of the MSR Doctrine,which derived from the supplementation theory allowing the court to determine the governing law subject to the MSR Doctrine.And it has been established under the Law of People's Republic of China on the Application of Law for Foreign-Related Civil Relations that the MSR Doctrine has become a supplementary principle in the choice-of-law process.However,due to the lack of discretionary tradition and the commonly incomplete understanding of the MSR Doctrine within China,the practical effect of the MSR Doctrine is challenged.According the statistics collected by this author,there are 76 civil judgments referencing the supplementary theory of the MSR Doctrine.However,it is astonishing that Chinese Law applies to almost all these judgment as a result,with the court giving only brief analysis or even no explanations.The awkward situation is caused by several factors: first of all,the MSR Doctrine is too flexible for the scholars or judges to work out a feasible application rule while the current legislation stays silent on how this doctrine shall be applied;secondly,the professional ability of the judge group is uneven and in fact,quite judges are incompetent for handling the MSR Doctrine;and lastly,it is hard to resist the attraction of applying the law of the forum when ascertain the foreign law brings heavy burdens,and while the discretionary power of the court is full and without appropriate limitations,the choice-of-law results is likely to deviate from what it ought to have been.Nonetheless,the weakness of the MSR Doctrine does not mean this doctrine is not applicable or is without any positive practical value.There's no denying that the introduction of the MSR Doctrine especially its supplemental function contributes a lot to bringing certain elasticity and flexibility to the rigid traditional rules for choice of law,making it possible for the court to fill in certain blanks in the conflict-of-law legislation.Therefore,the key is that how to play out the most of the supplemental function of the MSR Doctrine and to lead the application of the Doctrine to return to where it should be.It is of vital significance to reasonably limit or constrict the flexibility of theMSR Doctrine through specific and workable application rules.For one hand,the maneuverability of the MSR Doctrine could be strengthened by taking advantage of judicial interpretations or the guiding cases published by the Supreme Court,and it will be a lot of help to summarize a list of factors to be taken into consideration when applying the MSR Doctrine,such as the domicile or nationality of the parties,the place where the dispute arise,the place where the disputed objective stays,as well as the due expectation of reasonable person and the need to protect the predictability and consistency of choice-of-law results.For the other hand,the professional ability of the overall judge group to master the application of the MSR Doctrine shall be improved,and their discretionary power shall be appropriately constricted.Detailed analysis and explanations as to what is the most significant relationship and how to ascertain such relationship are needed before a court gives its decision on the governing law.The reasoning details in the court judgment and the authorities the court relies on must be convincing enough to justify the correctness of his choice of law.What's more,the judicial authority must get itself off the seemingly attracting territorialism.The interests between people at home and those abroad are much intricate and complex in such cases as the MSR Doctrine applies.Therefore,the judges handling foreign-related disputes must hold borderless principles,free themselves from the intrinsic preference to protect the interest of their nationals,and resolve the dispute in a most justice and fair way.Only in this way can the MSR Doctrine especially its supplemental function be reasonable applied or duly work out.So will the more fair,justice and reasonable resolution of international disputes.