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tw
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2009
2010

19481992 Rio
2002 Johannesburg21

21

21
legal globalization based on Chinese Philosophy
Chinese legal revolution

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issue-by-issue

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issue-by-issue

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171

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194

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200811

20094

anti-suit injunction

policy


analysis


Brainerd Currie, Married Womens Contracts: A Study in Conflict-of-Laws Method, 25 U.

Chi L. Rev.227; Notes on Methods and Objectives in the Conflict of Laws, 1959 Duke L. J.
171.William F. Baxter, Choice of Law and the Federal System, 16 Stan. L. Rev. 1. Friedrich
D. Juenger, Babcock v. Jackson Revisited: Judge Fulds Contribution to American Conflicts
Law, 56 Alb. L. Rev. 727; A Third Conflicts Restatement? 75 Ind. L. J. 403.
Symeon C. Symeonides, Choice of Law in the American Courts in 1995: A Year in

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territorialism

the most significant contact

145 2


62 6

Review, 44 Am. J. Comp. L. 181; Choice of Law in the American Courts in 1996: Tenth
Annual Survey, 45 Am. J. Comp. L. 447.


-
20071177178
Willis Reese, Choice of Law: Rules or Approach, 57 Cornell L. Rev. 322; The Second
Restatement of Conflict of Laws Revisited, 34 Mercer L. Rev.501.
Symeon C. Symeonides, Choice of Law in the American Courts in 1999: One More
Year, 48 Am. J. Comp. L. 143, 145-1462000.
761
78-80
134-153Babcock v. Jackson, 12 N. Y. 2d 473

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11

10

11

20071
208-229

6
(1)A court, subject to constitutional restrictions, will follow a statutory directive of its own
state on choice of law.
(2)When there is no such directive, the factors relevant to the choice of the applicable rule of
law include:
(a)the need of the interstate and international systems,
(b)the relevant policies of the forum,
(c)the relevant policies of other interested states and the relative interests of those states in
the determination of the particular issue,
(d)the protection of the justied expectations,
(e)the basic policies underlying the particular eld of law,
(f)certainty, predictability and uniformity of result, and
(g)ease in the determination and application of the law to be applied.
60

761
796145
61
Allstate Insurance Co. v. Hague, 449 U.S. 302 (1981)
Robert Lear, Choice-Influencing Considerations in Conflict of Law, 41 N.Y.U.L. Rev. 277;
Conflicts Law: More on Choice-Influencing Considerations, 54 Cal. L. Rev. 1584.
Babcock v. Jackson

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12

American Law Institutecomplex litigation

13

14

62

761
134-153

13Robert
Lear, Choice of Law: A Well-Watered Plateau, 41 Law & Contemp. Prob. 10 (1977)
P.26

Bruce Posnak, Choice of Law-Rules vs. Analysis: A More Workable Marriage Than the
(Second ) Restatement; A Very Well-Curried Leflar Over Reese Approach, 40 MERCER L.

12

13
14

Rev. 869 (1989)

Larry Kramer, Choice of Law in the American Courts in 1990: Trends And Developments,
39 Am J. Comp. L. 465; Michael Solimine, The Impact of Babcock v. Jackson: An Empirical
Note, 56Alb. L. Rev. 773.
A.L.I., Complex Litigation Project-Proposed Final Draft, 54 La. L. Rev. 881(1994).
761
208-229

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homeland of common law

15

16

17

presence power
18
International Shoe Co. v. Washington

minimum contacts Shaffer v.

Heitner 19

15

16

17
18
19

A. T. von Mehren and D. T. Trautman, Jurisdiction to

Adjudicate: A Suggested Analysis, 79 Harv. L. Rev. 1121, 1135-45 (1966).
von
Mehren

Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408 (1984).

general jurisdictionover a defendant in
a suit not arising out of or related to the defendants contacts with the forum. P.414
specic jurisdictionjurisdiction over a defendant in a suit
arising out of or related to the defendants contacts with the forum. P.414.
8

constitute the kind of continuous and systematic

general business contactsP.416

contact
contactconduct
Pennoyer v. Neff, 95 U.S. 714 (1877).
326 U.S. 310 (1945).
443 U.S 186 (1977).

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21

22

International Shoe
Pref. Juenger International Shoe

20

21

22

Burnham v. Superior Court, 495 U.S. 604 (1990)

transient jurisdiction

2020064117
subject-matter
jurisdiction and personal jurisdiction
Sinochem International Co., Ltd. v. Malaysia International Shipping Corporation,
127 S. Ct. 1184; 549 U.S. 422 (2007)

[W]here subject-matter or personal jurisdiction is difcult to determine,

and forum non conveniens considerations weigh heavily in favor of dismissal, the court
properly takes the less burdensome course.
2005
200911256
-
200931196204
CPR 1998 s. 6.20

2005
200911257258

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23

Pref. Clermont

24

minimum contacts
25

cause maximum chaos

Pref. Borchers

23

24

25

Friedrich K. Juenger, A Shoe Unfit for Globetrotting, 28 U.C. Davis L. Rev. 1027,
1044(1994-1995). But, as maters stand, such hopes seem vain. Beyond the internal havoc
they have caused, International Shoe and its progeny present formidable obstacles to
international harmonization. Because our own house is in disarray, we are unable to render
a contribution to the world at large.
-2243244
448related contactsbut forsubstantive
relevanceHelicopteros Nacionales de
Columbia v. Hall, 466 U.S. 408RAR Inc. v. Turner Diesel, Ltd., 107 F. 3d 12727th Cir.
1997.purposeful
availment See McGee v. International Life Insurance Co., 355 U.S. 220. Asahi
Metal Industry Co. v. Superior Court, 480 U.S. 102

reasonableness1
23

Kevin M. Clermont, Jurisdictional Salvation and the Hague Treaty, 85 Cornell L. Rev.
89. The United States law of territorial jurisdiction in civil cases is a mess. Many
commentators, here and abroad, have said so for a long time.
200520091
1289

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26

27

Prof. Briggs

28

26

Patrick J. Borchers, Comparing Personal Jurisdiction in the United States and the European
Community: Lessons for American Reform, 40 Am J. Comp. L. 121, 153, 156 (1992). the
Brussels convention is a far more successful effort at rationally regulating jurisdiction than
the minimum contacts test and the patchwork of legal and factual ctions that dominate
American jurisdiction. The fallback to signing the Lugarno Convention would be to

27

28

negotiate as many bilateral agreements as possible. Although this would be cumbersome, a

few successful bilateral agreements might pave the way for a multilateral agreement. Even if
a multilateral agreement dose not eventually result, some bilateral agreements would be an
improvement over the current law of the jungle.1992
20004
200520091
1147149287
A. Briggs, The Impact of Recent Judgments of the European Court on English Procedural
Law and Practice, 124 Zeitschrift Fur Schweizerisches Recht 231 et seq. (2005). The
European Court has had an impact on the law and practice of English courts which is
far from benign and which fully deserves the description of a menace to the morality of
commercial litigation. It is difcult to avoid the sense that it should be ashamed of itself.

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29
Powell Duffryn Plc v. Petereit
30
Salotti v. RUWA

principles of European contract law

31

Prof. Richard Fentiman

29
30
31

Case C-214/89 [1992] E.C.R. I-745.

Case 24176 [1976] E.C.R. 1831.
Salotti v. RUWA

2:1044:110

6:105

2005
200911118119
common frame of reference

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32

33

European legal revolution

III

34

32

33
34

Richard Fentiman, Choice of law in Europe: Uniformity and Integration, 82 TUL. L.

REV. 2021 (2008). A glimpse of how the Court perceives the European conicts process
is already visible in its approach to the Community jurisdiction regime embodied in the
Brussels Regulation. The court has rehabilitated uniformity of decision so as to promote the
certainty required by European integration. It has thus committed itself to an instrumental
conception of the conicts process, in which the best result in conicts terms is subordinate
to the higher goal of uniformity, and ultimately to the objective of European union. As this
suggests, the wider lessons to be learned from the European experience are ambiguous. The
European conicts regime promises much as a model for uniform choice of law. But it may
say less about the choice-of-law process, and more about the local, contingent demands of
European integration.
Ralf Michaels, The New European Choice-of-Law Revolution, 82 Tul. L. Rev. 1607 (2008).
P.2049, In a teasing sense, recent developments in Europe have no signicance for
conicts lawyers, even (counter intuitively) those in Europe itself. They are, however, of the
rst importance to students of the European polity and the science of international relations.
Ultimately, enactments such as the Rome I and Rome II regulations are instruments in the
service of European integration. The agenda they promote is not the design of optimal rules
for choice of law, but rules which serve that homogenizing project.

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Prof. Trevor C. Hartley

unnecessary
Europeanizationuncertainty and
confusion
35

36

Prof. C. G. J. Morse

35

36

Trevor C. Hartley, Unnecessary Europeanization under the Brussels Jurisdiction and

Judgments Convention: The Case of the Dissatisfied Sub-Purchaser, 18 E. L. REV. 506
(1993).
Trevor C. Hartley, The European Union and the Systematic Dismantling of the Common Law
of Conflict of Laws, 54 I.C.L.Q, 813, 828 (2005). The crass insistence that common law
rules must be abolished even where no Community interest is at stake is the feature of this
judgment that will cause most difculty for lawyers in England. It seems that the continental
judges on the European Court want to dismantle the common law as an objective in its own
right. The brushing aside of all practical considerations is also disturbing.

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harmonization

37

1980I
60

65
37

C. G. J. Morse, International Shoe v. Brussels and Lugarno: Principles and Pitfalls in

the Law of Personal Jurisdiction, 28 U.C. DAVIS L. REV. 999,1002 (1995).These are
undoubtedly grandiloquent sentiments. But no evidence was offered to support them at the
time they were made, and no hard evidence to support them has emerged since. The notion
that the free movement of judgments is fundamental to the effective working of a common
market must, perhaps, remain a suspect one.

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38

38

First, it constitutes a very serious attack on democracy, since it strips national legislators of
all powers. As they are left without any discretion to assess the requirements of justice and
social usefulness, and are only authorized to take note of what the least demanding among
them requires, national legislators lose their very raison dtre.
And this insult to democracy comes along with an equally clear contradiction of the
constitutional state. Indeed. Art. 65 of the EC Treaty authorizes the European Union to take
measures in the area at issue here (i.e. the conict of laws) only for the purpose of promoting
the compatibility of national solutions, and thus refuses to grant the EU the power to
standardize national solutions, that is, to make them identical (as the preparatory work so
clearly and unequivocally conrms). The initiative currently under way therefore constitutes
a manifest excess of jurisdiction-which, considering its extent, outdoes in seriousness all of
the abuses of power that, alas, have become a habit for Community authorities
For not much longer will the undersigned law professors be able to accept to disgrace
themselves, in both their writings and their teachings, by pretending to consider as such what
obviously is not law.http://comparativelawblog.blogspot.
com/2007/01/open-letter-french-private.html.

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502000

Prof. Hartley

39

40

1930Prof. Joseph Beale

41

42

Universal
Declaration of Human Rights8

43

172
44

39
40
41
42
43

44

Joseph Beale, A Treaties on the Conflict of Laws.

A. L. I. (1934), Restatement of the Law of Conict of Laws.
16
15
Everyone has the right to an effective remedy by the competent national tribunals for acts
violating the fundamental rights granted him by the constitution or by law.
2.No one shall be arbitrarily deprived of his property.1966
International Covenant on Civil and Political Rights23ab
3.Each State Party to the present Covenant undertakes:
(a)To ensure that any person whose rights or freedoms as herein recognized are violated
shall have an effective remedy, notwithstanding that the violation has been committed by
persons acting in an ofcial capacity;

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Convention for the Protection of Human Rights and Fundamental

Freedoms61

45

court of justice

46

political

45

46

(b)To ensure that any person claiming such a remedy shall have his right thereto determined
by competent judicial, administrative or legislative authorities, or by any other competent
authority provided for by the legal system of the State, and to develop the possibilities of
judicial remedy.
In the determination of his civil rights and obligations or of any criminal charge against
him, everyone is entitled to a fair and public hearing within a reasonable time by an
independent and impartial tribunal established by law.2000Charter of
fundamental rights of the European union47Right to an effective remedy and to a
fair trial
Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the
right to an effective remedy before a tribunal in compliance with the conditions laid down in
this Article.
Everyone is entitled to a fair and public hearing within a reasonable time by an independent
and impartial tribunal previously established by law. Everyone shall have the possibility of
being advised, defended and represented.
Legal aid shall be made available to those who lack sufcient resources in so far as such aid
is necessary to ensure effective access to justice.
Friedrich Carl von Savigny, A
Treatise on the Conflict of Laws 43 (William Guthrie trans., Edinburgh, T. & T. Clar, Law
Publishers 2d ed. 1880) (1849), Germans, Frenchmen, English, and Americans, often stand
in marked opposition to one another; but all agree in evincing the most lively interest in the
questions which [private international law] embraces, in an effort after approximation and
agreement, such as is found in no other department of jurisprudence.

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United Nations Convention on Contracts for the

47

International Sale of Goods [CISG] (1980)

47

Michael Joachim Bonell, The CISG, European Contract Law and the Development of a
World Contract Law, 56 Am. J. Comp. L. 1 (Winter, 2008), The United Nations Convention
on Contracts for the International Sale of Goods (CISG), though promulgated more than a
quarter of a century ago in an entirely different socio-economic and political environment,
remains a landmark in the international unication process. Adopted by seventy countries,
including most of the major trading nations, the CISG has not only achieved the status of a
veritable world sales law but has also led a number of States to modernize Their domestic
sales laws. In addition, it heavily inuenced the EC Consumer Sales Directive in Europe and
is a source of inspiration to the current work on a possible European Civil Code. Moreover,
at a universal level, the CISG has prompted UNIDROIT to prepare the UNIDROIT
Principles of International Commercial Contracts, a sort of restatement of the law of
international commercial contracts in general.P.10()
UNIDROIT Principles3
First, there are decisions-clearly the most important ones and all of them arbitral awardsin which the UNIDROIT Principles were applied as the law governing the substance of the
dispute. Sometimes this was expressly requested by the parties, either in the contract itself
or at the beginning of the arbitration proceedings. More often however, the contracts merely
referred to general principles of law, principles of international law, lex mercatoria
or the like, and the arbitrators applied the UNIDROIT Principles on the assumption that
they represented a particularly authoritative expression of supra-national or transnational
principles and rules of law. Recently there have been an increasing number of cases in which
arbitral tribunals have gone even further and applied the UNIDROIT Principles-either alone
or in conjunction with the otherwise applicable law-even in the absence of any choice of law
clause in the contract. In doing so, the arbitrators relied on the relevant statutory provisions
or arbitration rules according to which they may-to quote the language used in Article
17 of the ICC Rules of Arbitration-apply the rules of law which [they] determine to be
appropriate and in all cases [...] shall take account of [...] the relevant trade usages.

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DCFR

48

uniformitystability

better law theory

individual justice

49

48

49

200520091
134

20071
110

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the European Court of Justice

the Treaty Establishing the European Community

6567

(b)
50

220

51

65220court of

50

51

Article65
Measures in the field of judicial cooperation in civil matters having cross-border
implications, to be taken in accordance with Article 67 and in so far as necessary for the
proper functioning of the internal market, shall include:
(a)-the system for cross-border service of judicial and extrajudicial documents,
cooperation in the taking of evidence,
the recognition and enforcement of decisions in civil and commercial cases, including
decisions in extrajudicial cases;
(b)-promoting the compatibility of the rules applicable in the Member States concerning the
conict of laws and of jurisdiction;
(c)-eliminating obstacles to the good functioning of civil proceedings, if necessary by
promoting the compatibility of the rules on civil procedure applicable in the Member States.
Article 220
The Court of Justice and the Court of First Instance, each within its jurisdiction, shall ensure
that in the interpretation and application of this Treaty the law is observed.

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justice

court of justice

European Court of Unification

Prof. Richard
Fentiman
Owusu

Owusu

52

52

Richard Fentiman, Choice of law in Europe: Uniformity and Integration, 82 TUL. L.

REV. 2021, 2045, 2046 (2008). Owusu suggests that the Community conflicts regime
is ultimately the servant of European integration-the principle of instrumentalism. The
Community regime is not an end in itself (a better private international law), but a means
to an end (European integration). The enterprise is not to achieve the optimal result, judged
from the perspective of the private international lawyer. It is tempting to suggest, however,
that the Court of Justice rejected judicial discretion in OWUSU, not because European
integration required it, but because they adopted a more administrative, less adjudicatory,
view of the judicial role.

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