Structure of Conflict Rules
Like any other legal subject,private international law has its technical terms,some of which must now be explained in this chapter.
Generally,when a court hears a foreign-related case,it has to count the factors that connect or link the legal issues to the laws of potentially relevant states and applies the laws that have the greatest connection.The rules employed by the court to choose the appropriate rules of a system of law,domestic or foreign,are called “the rules of the conflict of laws,” or “choice-of-law rules,” or “conflict rules.”
Conflict rules,are often expressed in the form of short,abstract and sometimes ambiguous maxims,phrases,or terms (sometimes in Latin).Usually,the particular sense in which such phrases or maxims are used is made clear by the context.For example,a typical maxim is “Locus regit actum” or “succession to movables is governed by the law of the last domicile of the deceased.” The form in which these principles and rules are stated indicates that they are only designed to enable the court to discover the domestic law of the legal unit that will be applied to solve the relevant issues in cases containing legally relevant foreign elements.(https://www.daowen.com)
Proper application or development of conflict rules require full awareness of the two parts of which these rules are necessarily composed.Thus,although it need not exactly conform to the example,a typical conflict rule runs as,for instance,“[T]he ownership of immovable property shall be bound by the law of the place where it is situated.”1 Analytically,this rule falls into two parts: (i) “[T]he ownership of immovable property” and (ii) “shall be bound by the law of the place where it is situated.” The part in (i) is sometimes called “operative facts,” but a more accurate name for it is,probably,“legal category.” It is like pigeonholes into which the legal issue disclosed by the fact of a case may be placed.The part in (ii) is called “attribution,” as it attributes a legal category to a certain system of law.The linguistic structure of an attribution is normally expressed as “...is governed by the law of...” or “the law of...applies to....”
Generally,the first part of the rule,i.e.,legal category,defines its object,that is,certain operative facts,the legal consequences of which are determined in the second part,i.e.attribution.Differently expressed,legal category usually refers to the civil relationship in question which a conflict rule is to regulate; attribution indicates the applicable rule of law which governs the legal category.From another point of view,legal category raises,and attribution answers,a legal question.
In comparison with ordinary legal rules,there is one fundamental difference.The legal effects of an ordinary rule of law (material or substantive rule) are fully indicated; the question raised is immediately solved by commanding or prohibiting or authorizing certain conduct.In contrast,a conflict rule decides only the law of which state gives such immediate solution.Thus,rules of conflict of laws,or conflict rules,are not substantive rules,but rather than a technique to be used with great skill by the courts in their search for the relevant substantive law; in other words,the function of conflict rules is to choose the appropriate rule of law.It does not furnish a direct solution to the dispute.In this light,conflict rules are called “norms of indirect rules” by Chinese scholars.2