Domestic Sources
2.1 Domestic Legislation
Rules for the choice of law had been developed by courts and by jurists for many centuries before the first attempts were made to give some of them a legislative form.1 This happened in the course of the movement towards codification in the second half of the 18th century,and since then such provisions have been enacted in many countries.Sometimes this was and is done in a more or less systematic fashion,i.e.,through a code or a set of provisions specially set aside and reserved for conflict rules,sometimes these rules spread over substantive enactments.In some legal systems both forms of enactment can be found.
Provisions on private international law were first included in the Bavarian Codification of 1756 and in the Prussian Codification which came into force in 1794,but the most influential legislation of the conflict of laws was the French Civil Code of 1804.2 Since then,domestic legislation has gradually become the major source of private international law in civil law countries.
The 19th and the first half of the 20th centuries have seen much more elaborate codifications of which Introductory Law of German Civil Code of 1896 is probably the best known.It should be noted that German legislation served as a model for a slightly more extensive Japanese Hōrei of 1898,and for a similar Chinese “Act on the Application of Law” of 1918.
Nevertheless,legislation during this period has,for a variety of reasons,remained fragmentary,hesitant,and less influential than in other areas of private law.The reasons are clear.Many aspects of our subject are highly controversial,and the ranges as well as the depth of controversy have grown over the years.Courts and jurists had,at the time of the various codifications,in certain branches of the subject not succeeded in arriving at that measure of agreement which would have enabled a legislator to crystallize an accepted or predominant opinion in a rule of law.Thus the conflicts problems arising from contracts have rarely been the object of legislation and those arising from torts have been dealt with in a fragmentary fashion if at all.Far more attentions have been given by legislators to those problems of family law and of the law of succession which during the preceding centuries has been the main focus of practical and academic interest.
After the end of the World War II,traditional private international law legislation can no longer meet the requirement of judicial practice,as the international civil and economic exchanges have been increasing by leaps and bounds.Against such background,more and more countries have either revised significantly their existing conflict rules or have enacted new code of private international law.Austria Federal Code of Private International Law of 1978,Swiss Federal Code of Private International Law of 1987 and Japanese General Rules for Application of Laws of 2006,inter alia,are the most typical and influential.From the modern legislation,we can find that newly revised or enacted codes of private international law share some common characteristics which may be summarized as follows:
First,modern legislation of private international law is more expanded in scope and more elaborate in specific provisions.As noted above,traditional legislation of private international law was principally devoted to regulating the conflicts problems arising from civil affairs,especially those arising from family and succession issues; with the rapid development of international economic exchanges,various conflict rules for commercial disputes are enacted and included in modern legislation,such as international contracts,trust,bankruptcy,intellectual property,agency,investment and negotiable instruments.In essence,the expanding scope of modern legislation of private international law is a reflection of the countries’ efforts to solve the conflicts problems arising from international civil and commercial matters.In addition,modern legislation of private international law is much more elaborate in specific provisions.For example,conflict rules for torts contained in traditional legislation,if at all,is usually one general rule; however,with the increasing complicacy of tortious liability,it is widely recognized that there is a need to indicate particular conflict rules for particular types of tort apart from providing a conflict rule for tort in general.Within such a setting,more and more legislation provide special rules to meet the difficulties that certain torts present,thus,such types of torts as traffic accidents,product liability,unfair competition,defamation and torts involving ships or aircraft are usually subject to their own special rules in private international law legislation.3 Therefore,the trend toward a more detailed legislation constitutes a distinct characteristic of modern private international law.
Second,more and more countries favor comprehensive codification of private international law which aims at systematic completeness.Traditional legislation of private international law,represented by French Civil code,showed a mixture of a set of conflict rules and of relevant clauses attached to enactments mainly concerned with substantive law.Modern legislation tends to follow an approach of comprehensive codification.The best example of a codification now in force is probably the Swiss Federal Code of Private International Law of 1987.This code contains thirteen chapters and 200 articles which includes not only rules on choice of laws but also on jurisdiction and the recognition and enforcement of judgments and awards.Structurally,the provisions in common are distinguished from other specific provisions in the Swiss code,which is much similar to the modern code of civil law or criminal law,representing a significant progress of modern code of private international law.In this respect,the worldwide development of private international law since the 1960s has been characterized by a trend toward comprehensive codification.4
Third,the conflict rules in modern legislation are more “soft” or “flexible”,which is alleged to be a dominant characteristic of contemporary development of private international law.5 That is to say,the substitution of “soft” for “hard”,of “flexible” for “rigid” connecting factors is a conspicuous trend.The softening of connecting factors started in the law of contract several centuries ago,but in our time,it spreads far beyond it.The mobility of persons,above all the evolution of transport,and the creation of new media of communication (internet in particular),have made it impracticable to use rigid connecting factors to determine the governing law in many cases.Whether the softening of connecting factors is to be welcomed or to be deplored,it is an almost inevitable reaction to growing complexities of social and economic life,an attempt—sometimes successful and sometimes not—to adjust the principles of private international law to a changing environment.
Furthermore,it should be noted that the importance of domestic legislation as a primary source of private international law has gone beyond the sphere of civil law countries; at present,statutes adopted by the national legislatures have been playing a significant role in common law countries which has challenged the status of case law.The United Kingdom is a typical example,as Morris has noted in the 1990s that:
“The three most important sources of the English conflict of laws are statutes,the decisions of the courts and the opinions of jurists.They are placed in this order because there can be no doubt that statutes have become potentially by far the most important source,and their importance seems likely to increase rather than to diminish in future.”6(https://www.daowen.com)
More recently,European integration is the driving force behind constant evolution and change in the laws of the member states and the institutions of the European Union.Under such a circumstance,the most significant source of the English conflict of laws today is European Union law,which,basically,consists of legislation at EU level,as one English scholar observes that “until recently it had been settled wisdom that private international law,as understood in England,was moving away from being a common law subject with European insertions and becoming a European subject with common law marginalia.”7
Though the United Kingdom has decided to leave the European Union,the influence of EU law on the English conflicts law is decisive and everlasting.If the United Kingdom were to withdraw on the terms approved by Parliament,the resulting legal framework would in principle be that put in place by the European Union (Withdrawal) Act 2018.That is to say,on “Exit Day”,the European Communities Act 1972 will be repealed.This will,at a stroke,remove the legal basis upon which a substantial body of private international law takes effect in the legal order of the United Kingdom.In order to prevent the vacuum which would result from this,the Act provides for EU law—whether domestic legislation derived from EU law or EU legislation which was directly effective—to be retained as the law of the United Kingdom law,but on the authority of,and according to the terms of,the 2018 Act.8
2.2 Case Law
That in the development of private international law the courts have everywhere played a central role cannot be surprising.This is not only true in the countries of the common law where this is a matter of course,it is also true in countries which have to a larger or smaller extent relied on codification as an instrument for the formulation of conflict rules.
One of the most important reasons why case law contributes so much in the field of private international law is that legislation in this field,for a long time,lags behind the development of international civil and commercial exchanges.As we have introduced above,until the second half of the 20th century,codifications of private international law—with certain exceptions—remained fragmentary,both in their coverage and in their effect.For example,the French Civil Code,though considered as a significant progress in the legislative history of private international law,was a partial and fragmentary conflicts codification,so that the French courts had to play their creative role,so that no body would doubt the French private international law is overwhelmingly judge-made law.The same is largely true of Germany.9
What should be emphasized is that there is one particular reason why in private international law no codification,however comprehensive,can ever dispense with the creative role of the courts: this is the principle of ordre public which exists everywhere,whether or not it is spelled out in a code.It is the rule that a court refuses to apply a foreign rule if in the situation before the court such application would produce a result incompatible with the fundamental principles of public policy of the forum state.This principle has always been inherent in private international law: its formulation varies from country to country,so does its scope.We are not here concerned with the principle itself,but only with the power it inevitably gives to the courts.It is only paradoxical to say that the larger the scope a given system gives to the application of foreign law,the larger the creative role of the courts in evolving those rules of ordre public which are the necessary corollary of such application.As a matter of fact,the elusiveness of the principle of ordre public entails that the courts are ultimately in control of its exact content and its specific application.
In common law countries which usually do not rely on codification,the courts,needless to say,have exercised a vital function.In this respect,the role of the United States Supreme Court has been more significant in the fields of jurisdiction and recognition than in that of choice of law,while in the United Kingdom,the courts,for a long time,have played a role comparable to that of codifying legislation in European Continental countries.Though during the last decade the importance of statutes as one of the sources in common law countries is on the increase,there remain large areas of private international law where case law is still the most important source,and the courts still have a creative part to play.10
2.3 Academic Doctrines
Generally speaking,academic doctrines are not,in modern times,a formal source of authority anywhere.They do not make law as legislatures and courts (of some countries) do.However,it is a unique feature of the conflict of laws,as compared with other branches of law,that academic doctrines have exercised and are exercising a decisive influence.
To trace even in the barest outline of the academic influence on conflict of laws would be tantamount to writing the history of our subject.An excellent survey of this history is given by Professor Friedrich K.Juenger in his great book Choice of Law and Multistate Justice.[1]One can also refer to the next part of this book for a survey of the academic history of conflict of laws，and the influence of academic doctrines on our subject.What should be emphasized here is that academic doctrines play a vital part on the development of conflict of laws，among which the doctrines advocated by Ulrich Huber，Joseph Story，Friedrich Carl von Savigny，Dicey and Morris are of particular relevance.
Hence,though not considered as a formal source,academic doctrines have been recognized as a secondary source of conflict of laws both in civil law and common law countries whose importance can by no means be underestimated.