Professional Documents
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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
75114547
minimum contacts
minimum contacts
cause maximum chaos
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minimum contacts
constitute maximum deception
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Westlakethe most real connection
2
7(1)
7Brussel I
heel of Achilles
I
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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
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Cardozo
Prof. Graveson
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Kelly Kearney 39 Cal. 4th 95; 137 P.3d 914; 2006 Cal. LEXIS
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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.
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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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deter
and prevent279
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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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33
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Savigny
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18
Story Dic19
20
ey Pillet
Savigny
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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.
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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
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Currie
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trend
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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.
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Curie
Prof. Reese2
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...2
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672
2
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Prof Reese
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76180
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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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194817
1878
MillikenGray
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Prof. Currie
Milliken
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20071198199
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Babcock v. Jackson
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Hagues Estete
15,000
45,000
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Prof. Leflar
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Prof. Leflar
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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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3018 4(2)
15,000
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4(3)
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Alasla Packers
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Nevada v. Hall
Prof. Cur49
rie
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Marbury v. Madison
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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
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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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Currie
Babcock
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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
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449 U.S. 302, 318, 319
-20093
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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.
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7615052
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76169~77
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Currie
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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
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Hague
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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
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Stevens
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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)
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472 U.S. 797, 838, 839.
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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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Stevens
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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
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28,100
1,0003,4001,500
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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
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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.
87
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