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Globalization of Choice of Laws Rules Based on
Chinese Philosophy
20095

2010
the way of heavenly beneficence

19481992 Rio
2002 Johannesburg21

Chinese legal revolution

Erie Railroad v. Tompkins, 304 U.S. 64(1938)

75114547
minimum contacts
minimum contacts
cause maximum chaos

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minimum contacts
constitute maximum deception
14

1994 Complex Litigation Proposal

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2
Westlakethe most real connection
2

7(1)

7Brussel I

heel of Achilles

I
21

Prof. HartleyLaw is made for man, not man

for the law. 21
Cicero
CISG (1980) 7(2)
2004

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UNIDROIT Principles1.61106
U.C.Cs.1-102(1)

CISG7(1)
2004
UNIDROIT Principles1.71106
U.C.C 1-3041201
A

2004 UNIDROIT Principles

21

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Cardozo
Prof. Graveson

International Shoe Co. v. Washington, 326 U.S. 310, 326

Black J.Holmes J.natural
justice'I have
not yet adequately expressed the more than anxiety that I feel at
the ever increasing scope given to the Fourteenth Amendment in
cutting down what I believe to be the constitutional rights of the
States. As the, decisions now stand, I see hardly any limit but the
sky to the invalidating of those rights if they happen to strike a
majority of this Court as for any reason undesirable.' Baldwin v.
Missouri, 281 U.S. 586, 595, 50 S.Ct. 436, 439, 72 A.L.R. 1303.
legal
globalization based on Chinese Philosophy

21

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Allstate Insurance Co. 449 U.S. 302; 101 S. Ct. 633

Phillips Petroleum Co. 472 U. S. 797; 105 S. Ct. 2965

16

Sun Oil Co. 486 U.S. 717; 108 S. Ct. 2117

23

Kelly Kearney 39 Cal. 4th 95; 137 P.3d 914; 2006 Cal. LEXIS
8362

36

44

ALI Complex Litigation Proposal

52

59

59

66

69

80

()

80

()

86

97

115
115

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120

()

121

()

125

127

131

133

138

141

147

153

155

168

185

194

200

()

200

()

205

()

213

225

246

261

()

261

()

270

283

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296

302

322

344

355

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2007Regulation (EC) No 864/2007

of the European Parliament and of the Council of 11 July 2007 on the
law applicable to non-contractual obligations (Rome )
1

Prof. Symeonides
2

1978
5

SYMEON C. SYMEONIDES, Rome and Tort Conflicts: A Missed Opportunity , 56 Am. J. Comp. L.
173 (2008)
2
The authors assessment is by and large negative.
3
Although attaining a proper equilibrium between legal certainty and exibility is always difcult, Rome errs too much on the side of certainty, which ultimately may prove elusive.
4
7810181186
5
365368

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Prof. Caversjurisdiction-selection rules

164

205

21664(1)

10

6(4)14

7615052
David F. Cavers, A Critique of the Choice-of-Lew Problem, 47 Harv. L. Rev. 173 (1933).
8
Recital 16

Uniform rules should enhance the foreseeability of court decisions and ensure a reasonable balance
between the interests of the person claimed to be liable and the person who has sustained damage. A
connection with the country where the direct damage occurred (lex loci damni) strikes a fair balance
between the interests of the person claimed to be liable and the person sustaining the damage, and also
reects the modern approach to civil liability and the development of systems of strict liability.
9
Recital 20

The conict-of-law rule in matters of product liability should meet the objectives of fairly spreading the
risks inherent in a modern high-technology society, protecting consumers health, stimulating innovation, securing undistorted competition and facilitating trade.
10
Recital 21

The special rule in Article 6 is not an exception to the general rule in Article 4(1) but rather a clarication of it. In matters of unfair competition, the conict-of-law rule should protect competitors, consumers and the general public and ensure that the market economy functions properly.

Recital 23
7

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2577

174

11

deter
and prevent279

12

3114

13

3417

14

33
11

Recital 25
Regarding environmental damage, Article 174 of the Treaty, which provides that there should be a high
level of protection based on the precautionary principle and the principle that preventive action should
be taken, the principle of priority for corrective action at source and the principle that the polluter pays,
fully justies the use of the principle of discriminating in favour of the person sustaining the damage.
12
Recital 27

The exact concept of industrial action, such as strike action or lock-out, varies from one Member State
to another and is governed by each Member States internal rules. Therefore, this Regulation assumes as
a general principle that the law of the country where the industrial action was taken should apply, with
the aim of protecting the rights and obligations of workers and employers.

28
13
Recital 31

Where establishing the existence of the agreement, the court has to respect the intentions of the parties.
Protection should be given to weaker parties by imposing certain conditions on the choice.
14
Recital 34

In order to strike a reasonable balance between the parties, account must be taken, in so far as appropriate, of the rules of safety and conduct in operation in the country in which the harmful act was committed, even where the non-contractual obligation is governed by the law of another country.

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15

33

16

Savigny
17

18

Story Dic19

20

ey Pillet
Savigny

15

Recital 33
According to the current national rules on compensation awarded to victims of road trafc accidents,
when quantifying damages for personal injury in cases in which the accident takes place in a State other
than that of the habitual residence of the victim, the court seised should take into account all the relevant actual circumstances of the specic victim, including in particular the actual losses and costs of
after-care and medical attention.
16
7611730
17
Friedrich Carl von. Savigny (1779-1861), Private International Law, A Treatise on the Conflict of Laws
and the Limits of their Operation in Respect of Place and Time (1st ed. 1869, 2d ed. 1880), 108 (translated
into English by William Guthrie.)

It is [the] diversity of positive laws that makes it necessary to mark off for each... the area of its authority, to x the limits of different positive laws in respect to one another... When a legal relation presents
itself for adjudication, we seek a rule of law to which it is subject, and in accordance with which it is to
be decided... [The task is to determine] that legal system to which the legal relation belongs according
to its particular nature (where it has its seat).
18
Joseph Story, Commentaries on the Conict of Laws 4.
19
A.V. Dicey, A Digest of the Law of England with Reference to the Conict of Laws, at xliv (1896). The
nature of a right acquired under the law of any civilized country must be determined in accordance with
the law under which the right is acquired.
20
A. Pillet, Principes de droit international prive 33 (1903).

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Cook
21

Currie

22

23

trend

24

21

Walter Wheeler Cook, The Logical and Legal Bases of the Conict of Laws, 20, 21, 43 (1942), the
same method actually used in deciding cases involving purely domestic torts, contracts, property, etc.

The forum, when confronted by a case involving foreign elements, always applies its own law to the
case, but in doing so adopts and enforces as its own law a rule of decision identical, or at least highly
similar, though not identical, in scope with a rule of decision found in the system in force in another
state with which some or all of the foreign elements are connected... The rule thus incorporated into
the law of the forum, ...the forum... enforces not a foreign right but a right created by its own law.
22
Brainerd Currie, Selected Essays on the Conict of Laws, 183, 184 (1963), Just as we determine by
that process how a statute applies in time, and how it applies to marginal cases, so we may determine
how it should be applied to cases involving foreign elements.
23
7611730
24

200931252260

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25

Curie

Prof. Reese2
2

26

...2

27

25

CurrieCurrie, Selected Essays on the Conict of

Laws, 610, No place in conict-of-laws analysis for a calculus of private interests by the time the interstate plane is reached the resolution of conicting private interests has been achieved; it is subsumed
in the statement of the laws of the respective states.

76
15356
26
761119
27
Willis Reese, The Second Restatement of Conict of Laws Revisited, 34 Mercer L. Rev. 501, at 518
(1983), A criticism made of the Restatement Second by a number of writers does not give proper emphasis to what, in their opinion, is the only-or at least the principal-value in choice of law. This is that
the court should look to the policies underlying the potentially applicable local law rules of the state
having contacts with the case... If these writers are correct, the Restatement Second is plainly wrong. It
takes the position that this value, although important, does not stand alone and that there are other values to be considered. This insistence that there are a number of relevant values is a primary reason for
what can be justly termed the vagueness of some of the Restatement Second formulations. In defense,
it can be said that a balancing of values inevitably will be an uncertain process until it is nally determined which of there values should carry the greatest weight in a given situation. In many instances,
such a time has not yet come.

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2145188

28

29

672

2
22

Prof Reese

28

76180

29

20071177178

Dym v. Gordon, 14N.Y.2d 120, 262 N.Y.S. 2d 463, 209 N.E. 2d 792 (1965),
761
137143

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30

Milliken v. Pratt Prof. Currie

31

32

33

194817
1878
MillikenGray
34

Prof. Currie
Milliken

35

30

125 Mass. 374 (1878).

Brained Currie, Selected Essays on the Conict of Laws, Chapter 2: Married Womens Contracts: A
Study in Conict-of-Laws Method.
32
S. C .Symeonides, Revolution and Counter-Revolution in American Conicts Law: Is There a Middle
Ground? 46 Ohio St. L.J. 549, 564 (1985), That this is by now taken for granted, even by critics, and
forms the common denominator of all current choice of law methodologies is no reason to deny him the
credit rightfully due to him. Even if this were Curries only contribution to conicts theory, it would be
sufcient to secure him a permanent position in the conicts Hall of Fame.
33
Brained Currie, Selected Essays on the Conflict of Laws, Chapter 2: Married Womens Contracts:
A Study in Conflict-of-Laws Method., P.85, Who can say that Massschusetts for that matter, was
wrong? All that happened was that in each state the legislature weighed competing considerations, with
differfnt result.
34
761226228

But it is not true at the present day that all civilized states recognize the absolute incapacity of married
women to make contracts. The tendency of modern legislation is to enlarge their capacity in this respect,
and in many states they have nearly or quite the same powers as if unmarried. In Massachusetts, even at
the time of the making of the contract in question, a married woman was vested by statute with a very
extensive power to carry on business by herself, and to bind herself by contracts with regard to her own
property, business and earningsand, before the bringing of the present action, the power had been extended so as to include the making of all kinds of contracts, with any person but her husband, as if she
were unmarried. There is therefore no reason of public policy which should prevent the maintenance of
this action.
35
Prof. Currie

20071198199
31

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-
36

Babcock v. Jackson
37

38

Allstate Insurance Co. 449 U.S. 302; 101 S. Ct. 633

A l l s t a t e I n s u r a n c e C o . , v. H a g u e , P e r s o n a l R e p r e s e n t a t i v e o f
39

Hagues Estete

15,000

45,000

36

12 N.Y. 2d 473, 240 N.Y.S 2d 743, 191 N.E. 2d 279 (1963).

William A. Reppy, Jr., Eclecticism in Choice of Law: Hybrid Method or Mishmash?, 34 MERCER L.
REV. 645 (1983).
38

20071208~220
39
449 U.S. 302; 101 S. Ct. 633; 66 L. Ed. 2d 521; 1981 U.S. LEXIS 52; 49 U.S.L.W. 4071; 1981 Auto.
Cas. (CCH) P10,911James A. Meschewski, Choice of Law in Alaska: A Survival Guide for Using the Second Restatement 16 Alaska L. Rev. 1,
32, 33 (1999); Laura B. Bartell, the Peripatetic Debtor: Choice of Law and Choice of Exemptions 22
Bank. Dev. J. 401, 408 (2006)
37

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10

40

41

42

Prof. Leflar

43

44

Prof. Leflar

Prof. Leflar multistate theory

40

App. C to Pet. For Cert. A-29. Inimical to the public policy of Minnesota.
Milkovich v. Saari, 295 Minn. 155, 203 N.W. 2d 408 (1973).
42
R. A. Lear, Choice-Inuencing Considerations in Conicts Law, 41 N. Y. U. L. Rev. 267 (1966).
76182~87
43
289 N.W. 2d 43 (1978).
44
449 U.S. 302, The court emphasized that a majority of States allow stacking and that legal decisions
allowing stacking are fairly recent and well considered in light of current used of automobiles. In
addition, the court found the Minnesota rule superior to Wisconsins because it requires the cost of accidents with uninsured motorists to be spread more broadly through insurance premiums than does the
Wisconsin rule....That contracts of insurance on motor vehicles are in a class by themselves since an
insurance company knows the automobile is a movable item which will be driven from state to state.
From this premise the court concluded that application of Minnesota law was not so arbitrary and unreasonable as to violate due process.
41

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11

45

46

3018 4(2)
15,000
16
4(3)

30

47

Alasla Packers
48

Nevada v. Hall
Prof. Cur49

rie
45

Article 18 Direct action against the insurer of the person liable.

The person having suffered damage may bring his or her claim directly against the insurer of the person
liable to provide compensation if the law applicable to the non-contractual obligation or the law applicable to the insurance contract so provides.
46
Article 4 General rule

1. Unless otherwise provided for in this Regulation, the law applicable to a non-contractual obligation
arising out of a tort/delict shall be the law of the country in which the damage occurs irrespective of
the country in which the event giving rise to the damage occurred and irrespective of the country or
countries in which the indirect consequences of that event occur.

2. However, where the person claimed to be liable and the person sustaining damage both have their habitual residence in the same country at the time when the damage occurs, the law of that country shall
apply.

3. Where it is clear from all the circumstances of the case that the tort/delict is manifestly more closely
more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that
other country shall apply. A manifestly closer connection with another country might be based in particular on a preexisting relationship between the parties, such as a contract, that is closely connected
with the tort/delict in question.
47
Alaska Packers Assn. v. Industrial Accident Commn, 294 U.S. 532 (1935).
48
Nevada v. Hall, 440 U.S. 410 (1979).
49
F. Juenger, Choice of Law in Interstate Torts, 118 U. Pa. L. Rev. 200, 206-7 (1969), Ever since conicts law rst developed, courts did precisely what Currie would forbid them to do; no judge has ever
been impeached for inventing or applying a choice of law rule that sacrices forum interests. A. A.
Ehrenzweig, A Counter Revolution in Conicts Law? 80 Harv. L. Rev. 377, 389 (1966): As far as I
can see, all courts and writers who have professed acceptance of Curries interest language have transformed it by indulging in that very weighing and balancing of interest from which Currie refrained.

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12

50

Marbury v. Madison

51

52

53

Allstate Insurance Co.

54

50

7615963
Marbury v. Madison 1 Cranch 137, 2 L. Ed. 60 (1803), It is emphatically the province and duty of the
judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conict with each other, the courts must decide on the
operation of each.
52
Marbury v. Madison 1 Cranch 137, 2 L. Ed. 60 (1803), The province of the court is solely, to decide on
the rights of individuals...
53
7615963
54
449 U.S. 302, 312, 313, For a States substantive law to be selected in a constitutionally permissible
manner, that State must have a signicant contact or signicant aggregation of contacts, creating state
interests, such that choice of its law is neither arbitrary nor fundamentally unfair.
51

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13

55

56

57

58

59

60

Currie

Babcock

55

449 U.S. 302, 314, 316, The States interest in its commuting nonresident employees reects a state
concern for the safety and well-being of its work force and the concomitant effect on Minnesota employers. Employment status is not a sufciently less important status than residence
56
449 U.S. 302, 317, 318
57
449 U.S. 302, 318, 319
-20093
1213
Cheshire and Norths, Private International Law, 13th ed.
P.345, At one time great weight was attached to this factor, and if the claimant obtained a substantial
advantage from trial in England the courts were unlikely to grant a stay of the English proceedings. The
House of Lords in the Spiliada case sought to reduce the weight given to the advantage to the claimant when exercising the discretion to stay. Hence the principle that the mere fact that the claimant has a
legitimate personal or juridical advantage in proceedings in England cannot be decisive. The Spiliada
[1987] AC 46014th ed. P.439, The concern to reduce the weight to be attached to the advantage to
the claimant is a development to be welcomed. Although there has been considerable judicial condemnation of the practice of forum shopping, it appears in the past that the more the claimant had to gain
from this practice the more likely he was to be allowed to continue his action in England. The emphasis
in the House of Lords is now very much on chauvinism being replaced by judicial comity.
58
449 U.S. 302, 320, Minnesota had a signicant aggregation of contacts with the parties and the occurrence, creating state interests, such that application of its law was neither arbitrary nor fundamentally
unfair. Accordingly, the choice of Minnesota law by the Minnesota Supreme Court did not violate the
Due Process Clause or the Full Faith and Credit Clause.
59
7615052
60
76169~77

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61

3
Currie

45,00015,000

61

20071174178

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15

62

16

63

64

65

62

761131
Stig Jorgensen, The Decline and Fall of the Law of Torts, 18 Am. J. Comp. Law 39 (1970), 53.

J. G. Fleming The Collateral Source Rule and Loss Allocation in Tort Law, 54 Cal. L. Rev. 1478
(1966), 1548.

J. G. Fleming, Law of Torts, 5th ed., P.11.

Ehrenzweig, Negligence Without Fault, 54 Cal. L. Rev. 1422 (1966), P.1448.

Guido Calabresi, The Costs of Accidents. Fleming James, Jr., The Law of Torts. Robert E. Keeton and
Jeffery OConnell, Basic Protection for the Tarfc Victim. Walter J. Blum and Harry Kalven, Jr., Public
Law Perspectives on a Private Law Problem-Auto Compensation Plans. Warren G. Magnuson (Chairman
of the U.S. Senate Committee on Commerce), Nationwide No-Fault, 44 Miss. L. J. 132 (1973).

F. A. Trindade, A No-Fault Scheme for Road Accident Victims, [1980] 96 L.Q. Rev. 581.
64
761129~134

reasonable menforseeability

domicilethe place of the tort

In re Paris Air Crash of March 3, 1974, 399F.
Supp. 2d 732 (D. C. Calif. 1975)
65
961804
63

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Phillips Petroleum Co. 472 U. S. 797; 105 S. Ct. 2965

66

Phillips Petroleum Co. v. Shutts

11

50

67

68

Hague

66

472 U. S. 797; 105 S. Ct. 2965; 86 L. Ed. 2d 628; 1985 U. S. LEXIS 104; 53 U. S. L. W. 4879; 2Fed. R.
Serv. 3d (Callaghan) 797; 85 Oil & Gas Rep. 486.
67
class actionspresence power
Sovereign Camp v. Bolin, 305 U.S. 66 (1938)
(1)(2)
Federal Rule of Civil Procedure Rule 23 (a)(2)
Rule 23 (b) (1), (2),
Rule 23(b)(3)

23(c)(2)(B)(b)(3)

(b)(3)
opt-out(b)(1)(b)(2)
(b)(3)2005
200911130261264
The burdens placed by a State upon an absent class-action plaintiff are not of the same order or
magnitude as those it places upon an absent defendant.472 U.S. 797, 808
In Hansberry v. Lee, 311 U.S. 32, 40-41 (1940). Which explained that a class or representative
suit was an exception to the rule that one could not be bound by judgment in personam unless one was
made fully a party in the traditional sense. Ibid., citing Pennoyer v. Neff, 95 U.S. 714 (1878). 472 U.S.
797, 808
68
Plaintiff class members have indicated their desire to have this action determined under the laws of
Kansas. 235 Kan., at 211, 222, 679 P. 2d. at 1174, 1181.

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69

70

71

72

Justice StevensLeflar Scole

73

74

75

Stevens

69

In most cases the plaintiff shows his obvious wish for forum law by filing there. If plaintiff could
choose the substantive rules to be applied to an action... the invitation to forum shopping would be irresistible. 472 U.S. 797, 820
70
235 Kan., at 221-222, 679 P. 2d, at 1181.
71
We think that this is something of a bootstrap argument. The Kansas class-action statute, like those
of most other jurisdictions, requires that there be common issues of law or fact. But while a State may,
for the reasons we have previously stated, assume jurisdiction over the claims of plaintiffs whose principal contacts are with other States, it may not use this assumption of jurisdiction as an added weight in
the scale when considering the permissible constitutional limits on choice of substantive law. It may not
take a transaction with little or no relationship to the forum and apply the law of the forum in order to
satisfy the procedural requirement that there be a common question of law. 472 U.S. 797, 821
72
R. Lear, American Conicts Law 93, p. 188 (3d ed. 1977). See also E. Scoles & P. Hay, Conict of
Laws 2.6, p. 17 (1982)
73
7614950
74
472 U.S. 797, 838, 839.
75
472 U.S. 797, 829, As the Kansas court noted: What is signicant is these gas royalty suspense monies never did nor could belong to Phillips.

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76

77

Stevens

78

79

80

76

472 U.S. 797, 837, 838, Again, however, a constitutional claim of unfair surprise cannot be based
merely upon an unexpected choice of a particular States law it must rest on a persuasive showing of
an unexpected result arrived at by application of that law. Thus, absent any conict of laws, in terms
of the results they produce, the Due Process Clause simply has not been violated. This is because the
underlying theory of a choice-of-law due process claim must be that parties plan their conduct and
contractual relations based upon their legitimate expectations concerning the subsequent legal consequences of their actions. For example, they might base a decision on the belief that the law of a particular State will govern. But a change in that States law in the interim between the execution and the
performance of the contract would not violate the Due Process Clause.
77
472 U.S. 797, 831, [Equitable] principles require, and contractual principles dictate, that the royalty
owners receive the same treatment.
78
472 U.S. 797, 842, The Kansas Supreme Courts application of general principles of equity, its interpretation of the agreements, its reliance on the Commissions regulations, and its construction of general statutory terms contravened no established legal principles of other States and consequently cannot
be characterized as either arbitrary or fundamentally unfair to Phillips.
79
472 U.S. 797, 808, The class action was an invention of equity to enable it to proceed to a decree in
suits where the number of those interested in the litigation was too great to permit joinder.
80
472 U.S. 797, 809, From the plaintiffs point of view a class action resembles a quasi-administrative
proceeding, conducted by the judge. 3B J. Moore & J. Kennedy, Moores Federal Practice para. 23.
45 [4.-5] (1984); Kaplan, Continuing Work of the Civil Committee: 1966 Amendments to the Federal
Rules of Civil Procedure (I), 81 Harv. L. Rev. 356, 398 (1967).

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81

Stevens

82

28,100
1,0003,4001,500

83

84

100

2005Sec.
2(a)(2)Class Action Fairness Act of 2005

Sec. 2(a)(3)
85

81

Blacks Law Dictionary, 7th ed., P.560, Fairness; impartiality; evenhanded dealing.
761223224

justified expectationSchlesinger
fraud
standard form contract
bargaining power

R. B. Schlesinger, Formation of Contracts, at 71.

83
472 U.S. 797, 801, 805.
84
472 U.S. 797, 809, This lawsuit involves claims averaging about $ 100 per plaintiff; most of the plaintiffs would have no realistic day in court if a class action were not available.
85
28 USC 1711 note. SEC. 2. FINDINGS AND PURPOSES.

(a) FINDINGS.Congress nds the following:

(2) Over the past decade, there have been abuses of the class action device that have

(A) harmed class members with legitimate claims and defendants that have acted responsibly;

(B) adversely affected interstate commerce; and

(C) undermined public respect for our judicial system.

(3) Class members often receive little or no benet from class actions, and are sometimes harmed, such
82

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Prof. ScolesRule 23(b)(1)

(2)

86

Rule 23 (b)(3)Hague

87

Hague
Stevens

Stevens
as where
(A) counsel are awarded large fees, while leaving class members with coupons or other awards of little
or no value.

(b) PURPOSES.The purposes of this Act are to

(1) assure fair and prompt recoveries for class members with legitimate claims.

1713. Protection against loss by class members

The court may approve a proposed settlement under which any class member is obligated to pay sums
to class counsel that would result in a net loss to the class member only if the court makes a written
nding that nonmonetary benets to the class member substantially outweigh the monetary loss.
86
Eugene F. Scoles, Peter Hay, Patrick J. Borchers, Symeon C. Symeonides, Conict of laws, 3rd ed.,
P.439, Rather than focusing on territoriality, a more sensible question to ask and answer is whether
there is any palpable unfairness to the unnamed, nonresident plaintiffs in allowing the matter to proceed
as a mandatory class action. If there is no such unfairness, then whether those nonresident plaintiffs
have minimum contacts with the forum ought have little weight in the analysis.
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