国际私法英文阅读.doc

5.1 The incidental questionA case involving private international law may place a subsidiary issue, as well as a main question, before the court. Once the relevant choice of law rule has been applied and the law to govern the main issue thereby determined, a further choice of law rule may be required to answer the subsidiary question affecting the main issue.An incidental question properly so-called presumes the existence of three facts. The main issue should be governed by a foreign law. There should be a subsidiary question involving a foreign element which could have arisen separately and which has its own independent choice of law rule. This choice of law rule should lead to a conclusion different from that which would have been reached had the law governing the main question been applied. Without these pre-requisites there is no incidental question, and in most of the cases where a true problem has arisen the court has not appreciated that a determination of the law to govern the incidental question is required. This is an issue on which the support of jurists may be found for a variety of solutions. Some support the law governing the main issue, others of the choice of law rules of the forum, and others consider that determination of the problem will depend on the nature of the individual case and the policy of the forum thereto.5.2 Characterization The “characterization of the cause of action” means the allocation of the question raised by the factual situation before the court to its correct legal category. Its object is to determine relevant rule for the choice of law. The rule of any given system of law are arranged under different categories, some being concerned with status, others with succession, procedure, contract, tort and so on.The jurisdiction-selecting rules of the First Restatement required that each case be labeled in order to determine which choice of law rule applied. If the case were labeled a “contract” problem, then the law of the place of making or performance would be applied; if the case sounded in “tort”, then the system specified application of the law of the place of jury. Obviously, the result could turn on which label the court chose for problem.Although characterization is probably an inescapable part of thinking conceptually about any problem, its use entails a substantial risk. Such “decision-making by pigeon-hole” avoid the reasoning necessary to explain why a particular pigeon-hole should be chosen. Characterization encourages reflexive, mechanical choice rather than reflective inquiry into the reasons why a particular result is proper.5.3 RenvoiIn American conflicts law, a reference to the law of another jurisdiction almost always is a reference to the law that the foreign state would apply to a purely domestic problem. American courts rarely look to the conflicts law of the other jurisdiction as an aid to solving a choice-of-law problem. The focus, in conflicts parlance, is not on the “whole law” of the other state (that is, its substantive law plus its choice-of-law rules), but rather on its “internal law” (that is, the rules which the other state would use to decide a purely domestic problem).If a judge in country A is referred by his own rule of the choice of a law to the “law” of country B, but the rule of the choice of law in B refers such a case to the “law” of A, then the judge in A must apply the internal law of his own country. The operation of this famous but regrettable doctrine (doctrine of single renvoi) demands that a reference to the law of a country shall mean a reference to the whole of its law.A number of arguments have been advanced opposing the use of renvoi. Perhaps the weaker argument involves the fear that the court will be caught in an endless circle of references. It is easy to break the circle, however, because the forum can always employ its own law or, alternatively, the forum could use modern choice-of-law theories (such as comparative impairment) to end the deadlock. In any event, the theoretical possibility of endless circles generally should not preclude the use of renvoi. And, indeed, courts seem to have had little difficulty with what appears to be a purely theoretical problem.A more telling objection centers on the difficulty of determining the choice-of-law rules of another state a task generally more difficult than ascertaining foreign substantive law. But the forum can control the situation; if another states choice-of-law rules are that difficult to figure out, then it is hard to see what purpose would be served by referring to them.5.4 Fraud in conflict casesWhen the parties (or either of them) create an artificial link with another legal system in order to evade the law which is rendered applicable to their legal relationship by the appropriate choice-of-law rule, we have the case of fraud. The intention of evading the applicable law is generally held to be a notional element of fraud, which often creates difficulties of proof.On principle, fraud in selection of law may lead to the application either of the law of the forum or of a foreign legal system. Its commonest form is that of the parties artificially changing the connecting factor by which the applicable law is determined. This is easy to achieve especially in the case of the so-called mobile connecting factors (place of residence, place of contracting, etc.) but deliberate change in domicile or even nationality is likewise a common recourse.By fraudulent selection of law, the parties (or either of them) seek to gain individual advantage: either to avoid the undesirable consequences of their legal relationship or to produce a favorable legal effect not incidental to their original legal status.The legal appraisal of and sanctions for fraudulent conduct vary by country. Some legal systems (e.g. the French) adopt a rigorous approach, others take a larger view, and still others (the English, the American) show a tolerant attitude.5.5 Proof of foreign lawAt common law, the only law a court would recognize was that of its own state. The law of other states and countries was but a fact. Thus, when choice-of-law rules referred to the law of another state or country, that law had to be pleaded and proved like any other fact. That meant that the foreign law was argued to the jury and could not generally be reviewed by an appellate court.In this century, however, statutory changes in the United States have modified the common law rule. A large number of states have provisions for judicial notice of sister state law, and in a few instances this has been extended to include foreign-country law.Federal Rule of Civil Procedure 44.1, for example, provides that the court shall treat an issue concerning the law of a foreign country as a question of law which may be reviewed on appeal.The judicial notice procedure is very useful and generally presents little trouble when the law of another state is in question. When the law of another nation is at issue, however, courts should be wary of making assumptions about legal systems which bear a surface similarity to ours, but which, on closer analysis, are quite different; foreign law must be understood as well as recited. Nevertheless, American courts have managed to apply the law of some rather exotic places.When judicial notice is not applicable, and when proof of foreign law fails, courts at times presume the foreign law to be identical with that of the forum or it may dismiss the suit.5.6 Public policyUnder the traditional approach to choice of law, the forums conflicts rules would direct it to the law of a particular state, initially without regard to the content of that law. Upon examination of the other states law, the forum might then discover that the other law offended its local public policy. Example: the claim, valid under the law of the state where it arose, involves a gambling debt, yet gambling is prohibited in the forum state. In these circumstances, the forum would not entertain the foreign claim. Public policy thus served as a defense against unpalatable results under the