The German Contribution: Seat Theory
The most influential writer after Huber was Friedrich Carl von Savigny (1779-1861).In broad terms,Savigny was a member of the German Historical School and was much concerned with legal reform.He held the view that legal reform could only be based on historical research and proper analysis and that the nature of any system of law was a reflection of the spirit of the people who produced it.[5]
In 1849,Savigny published his conflict classic as volume eight of his System of Current Roman Law where he maintained that it was possible to construct a system of private international law common to all civil law nations.Savigny derived little satisfaction from what had already been done.He dismissed the Statute Theory as being incomplete and ambiguous and he denied the inference drawn by Huber from territorial sovereignty that a judge must apply his own law exclusively except in the case of rights already vested under some foreign law.[6]
After demonstrating the defects of the earlier doctrines,Savigny proposed to resolve conflicts problem by allocating legal relationship to the territory to which it “belongs,” or in which it has its “seat.” In his opinion,the problem is not to classify laws according to their object,but to discover for every legal relation the local law to which in its proper nature it belongs.Each legal relation has its natural seat in a particular local law,and it is that law which must be applied when it differs from the law of the forum.This guiding principle,according to Savigny,is compelled by the needs of an “international legal community of nations dealing with one another.”19 He argued that the existence of such a community,and the common advantage nations and individuals derive from an increasing flow of multistate transactions,call for reciprocity in dealing with legal relationships.As a corollary to the equality of citizens and foreigners,legal relationships should be treated in the same way,irrespective of the forum that adjudicates them.In other words,Savigny’s basic objective was to achieve uniformity of result,or put it negatively,the prevention of forum shopping.Indeed,in Savigny’s cosmopolitan and universalist milieu,there is no room for forum protectionism; private international law should not be concerned with promoting the forum’s interests as such but should instead aspire to ensure that each multistate dispute is resolved in the same way regardless of where it is litigated.20(https://www.daowen.com)
Savigny called his seat theory a mere “formal principle.” To give it substance,he proposed to link persons and legal relationships with a given territory by focusing on certain kinds of contacts.First of all,he selected domicile as the most appropriate nexus to control a person’s legal capacity,rejecting the national law principle that had surfaced in the French Civil Code,he then proceeded to divide legal relationships into several broad categories for the purpose of determining which of the four possible connecting factors enumerated,i.e.,domicile,situs,place of transaction and place of litigation,is best suited to each.To that end,Savigny developed a classification system geared to major private law categories (property,obligation,family law,successions,etc.).All that remained to be done was to find for each of these conceptual pigeonholes the appropriate contact to localize any given legal relationship in the territory to which it belongs “according to its peculiar nature.”
The result of this classificatory approach was a network of neutral,even-handed,bilateral conflict rules that assigned each relationship to one particular state,regardless of that state’s actual or imputed “wish” to apply its law and regardless of that law’s content.Though Saviny’s seat theory has been proved to have inherent defect,and his dream of achieving decisional harmony has not materialized,his approach to conflicts has been regarded as conventional wisdom for generations of conflicts scholars,and remains to be the classic approach in Europe.His book was translated into several languages,including Chinese,[7]and has been citied as authority both in civil law countries and Anglo-American law countries.His notion of a “seat” of legal relationships inspired Westlake’s formulation of the proper law approach,which in turn,spawned such concepts as the “closest connection” and the “most significant relationship” that currently enjoy considerable popularity.As a standard American conflicts textbook observes that “[S]avigny’s contribution was both constructive and decisive.”21