国际私法英文材料.doc

第一章The Conflicts Case（必读）Many legal disputes are purely local. For instance: whether the contractor has or has not substantially performed when the location of an interior wall was off by six inches will usually be decided by local courts and according to local contract law.Increasingly, however, disputes will have a foreign element. In conflicts law, foreign does not necessarily mean the same as foreign country. Instead, foreign is everything which is not local. Thus, for instance, foreign parties are parties from another state of the United States or from a foreign country. Similarly, a foreign transaction is one which took place outside the local state. For instance, a product manufactured in another state or country may cause injury locally: the victim would like to sue to locally rather than have to travel where the defendant tortfeasor is. Also, the victim would like, if possible, to have the court apply local law (for instance, because it provides for strict liability). Assume that the victim does recover in his or her home state but that the foreign (out-of-state) defendant owns no property there: the judgment creditor will therefore now have to seek recognition and enforcement of the judgment in the defendants home state (or in another state where there are assets belonging to the defendant).Conflicts Law thus has an ordering function: When the case is connected with more than one legal system-when it is an interstate or international case-, conflicts law decides who has the power to decide the case, according to whose law the case should be decided, and what the effect is elsewhere of the resulting judgment.As a general rule, American conflicts law does not differentiate between interstate and international cases: the same rule with respect to jurisdiction, choice of law, and the recognition of judgments apply to both.Exceptions:1) In jurisdiction, the international nature of a case may make litigation in an American court inappropriate.2) The Full Faith and Credit Clause does not apply to foreign country judgments, but most states accord those judgments the same recognition as they would to sister-state judgments.3) The United States has entered into a number of trarties which apply to international case only. Examples: International Sales Convention; Civil Aspects of International Child Abduction; Service of Documents; Taking of Evidence Abroad.Concept and types of the conflict rule（必读）The norms indirectly regulating facts of private international law form a special group of statutory provisions called conflict rules. On a broader plane a conflict rule is understood to mean a norm regulating any conflict of law, to wit, determining which of several relevant rules is to be actually applied.Conflict cases may be international, when the choice is between the laws of several sovereign States; the norms resolving such conflicts are called conflict rules of the international type.Conflicts may also arise between differing laws of non-sovereign parts of a sovereign State. Bartolus and Statutists（必读）Bartoluss method of resolving conflicts was based on a simplistic classification of local laws (statute) into two categories: real or personal. Real statutes were those that operated only within the territory of the enacting state but not beyond. In contrast, personal statutes operated beyond the territory of the enacting state and bound all persons that owed allegiance to it. Bartolus thought that this classification could resolve all potential conflicts because all statutes, both domestic and foreign, belonged to either the one or the other category, leaving neither gaps and doubts.Indirect and Direct Regulations（必读）Legal development has evolved two methods of dealing with facts of private international law - indirect and direct regulation. Both are applied side by side. Distinction is made between them according to the adopted approach, the way of regulating facts.Indirect regulation is spoken of when a fact of private international law is regulated in two phases, with the help of rules established on two planes: (a) The rules related to the selection of the legal systems that may be taken into consideration, and to the choice of the applicable law, determining which of the competing systems of law is to be looked to for arriving at the decision of a concrete case. Accordingly the function of the first-plane rules is to resolve the conflict of competing legal systems, to give a guide to the applicable law, to refer to the norms governing the case. The remitting rules are therefore called conflict rules, which designate nothing but the applicable system of law, neither determining the substance of private international cases nor providing any guidance as to the rights and duties of the subjects of a particular legal relationship. (b) The rules designed for the actual solution of a given relationship are found in indirect regulation and are called positive rules as contrasted with conflict rules. They serve to determine the rights and obligations of the subjects of the legal relationship involved.The indirect regulation of private international law facts consists in selecting the applicable law according to the conflict rule on the hand and in regulating the particular legal relation according to the positive rules of the applicable law, on the other. Direct regulation means that the legal norms are directly applied, as in the case of domestic facts with on foreign connection to the solution of the legal relationship on its merits, determining the rights and obligations of the parties. There is no intermediate phase of regulation, nor is one necessary, and there is no selection and designation of the applicable law. Thus the norms of direct regulation bear remitting character, are not conflict rules, but ones directly establishing the legal effects of private international law cases.The international character of these cases (their links with two or more legal systems) implies that the direct regulation of such legal relationship is only possible through common or uniform legislation by the States (two or more states) concerned, primarily by means of international (bilateral of multilateral) agreements. Confronted with such cases, the States involved try to accommodate their economic interest, moral values, legal traditions, etc. and to resolve, by a common act legislation, the conflict between their legal system is particular area.Substance VS. ProcedureIf the forum determined that reference should be made to a foreign law, the traditional rule provides that such reference need only to be to substantive matters. The law of the forum will govern all procedural matters. And the determination of what is substance and what is procedure is made by the forum according to its own standards.The purpose of distinguishing between substance and procedure is to draw the line on what issues the forum is justified in deciding according to local law. Because uniformity of results has long been the major goal of choice-of-law methodology, this line should be drawn so as to encourage application of the appropriate foreign law to the greatest extent possible. Thus, all issues that may materially affect the outcome of a case have been classified as substance. On the other hand, the house rules of the litigation-aspects of the case that will have little bearing on the outcome-can be governed by forum law, for reasons of convenience and practicality and to insure the proper administration of justice.Routine matters relating to service of process, sufficiency of pleadings, procedural capacity of the parties, forms of actions, and the like obviously can be classified as procedural although the forum may still refer to foreign law on such matters if it chooses. However, many issues, such as rules of evidence, formalities-statute of frauds, time limitations-statute of limitations, measure of damages, and direct action against insurer, are not so easily categorizeLegislative Jurisdiction VS. Judicial JurisdictionThe courts of many nations will not adjudicate civil disputes unless the parties (or their property) and their claims are subject to the forums judicial jurisdiction or jurisdiction to adjudicate. As discussed below, judicial jurisdiction includes both (a) the power of a court to render a judgment against particular persons or things, and (b) the power competence of a court to adjudicate particular categories of claims.Judicial jurisdiction is distinguished from legislative or prescriptive jurisdiction, which refers to the authority of a state to make its laws generally applicable to persons or activities. Judicial jurisdiction is also distinguished from enforcement jurisdiction-the authority of a state to induce or compel compliance, or punish noncompliance, with its laws.In the United States, a court cannot hear a dispute unless it possesses both personal jurisdiction over the parties and subject matter jurisdiction over their claims. Subject matter jurisdiction is the power to of a court to entertain specified classes of cases, such as any action between parties of differing citizenships.Although subject matter and legislative jurisdiction are sometimes confused, there is a fundamental distinction under U.S. law between the two categories. Subject matter jurisdiction is a courts power to hear a category of disputes without necessary regard to the substantive rules that are applied. In contrast, legislative jurisdiction deals with the power of a state to prescribe substantive law, without necessary regard to the forum in which that law is applied.There is also a fundamental distinction under U.S. law between subject matter jurisdiction and personal jurisdiction. Personal jurisdiction involves the power of a court to adjudicate a claim against the defendants person and to render a judgment enforceable against the defendant and any of its assets. In contrast, subject matter jurisdiction refers to a courts power to hear categories of claims, without necessarily considering the relationship of the parties to particular cases to the forum. 第二章Contractual Capacity（必读） Generally, the law presumes that the parties to a contract have the requisite contractual capacity to enter into the contract. However, certain people do not have this capacity. They include minors, insane persons, and intoxicated persons. (1)to protect a minor, a person who has not reached the age of majority, the law recognizes the infancy doctrine, which allows minors to disaffirm (or cancel) most contracts they have entered into with adults. But if a minor does not disaffirm a contract either during the period of minority or within a reasonable time after reaching the age of majority, the contract is considered ratified (accepted). (2)to be relieved of a mental incapacitys duties under a contract, the law requires a person to have been legally insane at the time of entering into the contract. This is called Legal insanity. Most states use the objective cognitive “understanding” test to determine legal insanity. Under this test, the persons mental incapacity must render that person incapable of understanding or comprehending the nature of the transaction. Mere weakness of intellect, slight psychological or emotional problems do not constitute legal insanity. The law has developed the following two standards concerning contracts of mentally incompetent persons: adjudged insane and insane, but not adjudged insane. (3)contracts entered into by intoxicated persons are voidable by that person. The intoxication may occur because of alcohol or drugs. The amount of alcohol or drugs that are necessary to be consumed by a person to be considered legally intoxicated to disaffirm contracts varies from case to case. The factors that are considered include the users physical characteristics and his or her ability to “hold” intoxicants.The Doctrine of Sovereign Immunity（必读）One of the oldest principles of international law is the doctrine of sovereign immunity. Under this doctrine, countries are granted immunity from suits in courts in other countries.Originally, the United States grated absolute immunity to foreign governments from suits in U.S. courts. In 1952, the United States switched to the principle of qualified or restricted immunity, which was eventually codified in the Foreign Sovereign Immunity Act of 1976 (FSIA). This act now exclusively governs suits against foreign nations in the United States, whether in federal or state court. Most Western nations have adopted the principle of restricted immunity. Other counties still follow the doctrine of absolute immunity.The FSIA provides that a foreign country is not immune from lawsuits in U.S. courts in the following two situations:(1) The foreign country has waived its immunity, either explicitly or by implication.(2) The action is based upon a commercial activity carried on in the United States by the foreign country or carried on outside the United States but causing a direct effect in the United States.What constitutes commercial activity is the most litigated aspect of the FSIA. If it is commercial activity, the foreign sovereign is subject to suit in the United States; if it is not, the foreign sovereign is immune from suit in this country.The National Treatment clause（必读）The National Treatment obligation of the GATT, like the MFN obligation, is a rule of nondiscrimination. In the case of MFN, the obligation prohibits discrimination as between the same goods from different exporting countries. The national treatment clause, in contrast, imposes the principle of nondiscrimination as between domestically produced goods and the same imported goods. It is a central feature of international trade rules and policy, and exists within the GATT system to prevent government practices which evade the tariff obligations.Article is the central national treatment obligation of the General Agreement, which establishes the general principle that internal taxes and regulations should not be applied so as to afford protection to domestic production. The MFN principle（必读）The unconditional most-favored-nation (MFN) provision is the cornerstone of the international trade rules embodies in the General Agreement on Tariff and Trade (GATT).The basic rationale for MFN is that if every country observes the principle, all countries will benefit in the long run through the resulting more efficient use of resources. Furthermore, if the principle is observed, there is less likelihood of trade disputes.MFN has sometimes been described as the central policy of GATT and the post Word Wartrading system. The fact that it is Articleof General Agreement reinforces that position.“ any advantage, favor, privilege, or immunity granted by any contracting party to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting parties.”The principle must be applied “unconditionally”. This means, for instance, that a state can invoke most favored treatment without granting in turn some advantage. In other words, the principle is not based on reciprocity. 第二章2.1 The name of subjectThe term “Conflict of Laws” describes generally the body of law dealing with the questions of when and why the courts of one jurisdiction take into consideration the elements of foreign law or fact patterns in a case or consider the prior determination of another state or of a foreign nation in a case pending before them. “Conflict of Laws” is the term primarily used in the United States, Canada and more recently in England, while the Continental countries, and some writers in England, at least since the writing of Westlake, refer to “private international law.” Neither term is fully descriptive. “Private international law” might connote that the subject somehow-in the context of private disputes-partakes of the general “law of nations,” public international law, that is, a general body of law for the ordering of affairs between nations about which there exists a certain consensus. Rules of conflicts of law, or of private international law, however, relate to legal issues between private persons and do not emanate from an international consensus, such as “customary (public) international law.” Instead they are part of each state or nations domestic law and therefore often differ from one jurisdiction to another. In the United States, moreover, conflicts rules are primarily state law, albeit subject to some important federal constitutional, treaty, and statutory constraints, with the result that they may come into play both in interstate (state/state) and international situations (state/foreign nation).Nor is the term “Conflict of Laws” an entirely accurate description for it suggests that laws “conflict” and, by hypothesis, that there is a mechanism for the resolution of the conflict. To state that laws “ conflict” seems to assume the existence of laws of equal applicability. It is not uncommon to say that the substantive rules of decision of two states related to a transaction are “in conflict” when there are circumstances which apparently justify the application of the law of either state. However, since conflicts rules are domestic lawa foreign rule will influence the result only if so viewed by the forum. Either the domestic substantive rule or the foreign substantive rule will be influential by reason of the conflict of laws rule or approach of the forum; hence, the two substantive laws will not be “equally applicable” and in “conflict.” It also follows from the nature of conflicts law as state law that there is no mechanism of superior authority for the resolution of “conflicts,” instead, the ac