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1、第一章The Conflicts Case (必读)Many legal disputes are purely local. For instance: whether the contractor has or has not substantially performed when the location of an interior wall was off by six inches will usually be decided by local courts and according to local contract law.Increasingly, however, d
2、isputes will have a foreign element. In conflicts law, foreign does not necessarily mean the same as foreign country. Instead, foreign is everything which is not local. Thus, for instance, foreign parties are parties from another state of the United States or from a foreign country. Similarly, a for
3、eign transaction is one which took place outside the local state. For instance, a product manufactured in another state or country may cause injury locally: the victim would like to sue to locally rather than have to travel where the defendant tortfeasor is. Also, the victim would like, if possible,
4、 to have the court apply local law (for instance, because it provides for strict liability). Assume that the victim does recover in his or her home state but that the foreign (out-of-state) defendant owns no property there: the judgment creditor will therefore now have to seek recognition and enforc
5、ement of the judgment in the defendants home state (or in another state where there are assets belonging to the defendant).Conflicts Law thus has an ordering function: When the case is connected with more than one legal system-when it is an interstate or international case-, conflicts law decides wh
6、o has the power to decide the case, according to whose law the case should be decided, and what the effect is elsewhere of the resulting judgment.As a general rule, American conflicts law does not differentiate between interstate and international cases: the same rule with respect to jurisdiction, c
7、hoice of law, and the recognition of judgments apply to both.Exceptions:1) In jurisdiction, the international nature of a case may make litigation in an American court inappropriate.2) The Full Faith and Credit Clause does not apply to foreign country judgments, but most states accord those judgment
8、s the same recognition as they would to sister-state judgments.3) The United States has entered into a number of trarties which apply to international case only. Examples: International Sales Convention; Civil Aspects of International Child Abduction; Service of Documents; Taking of Evidence Abroad.
9、Concept and types of the conflict rule (必读)The norms indirectly regulating facts of private international law form a special group of statutory provisions called conflict rules. On a broader plane a conflict rule is understood to mean a norm regulating any conflict of law, to wit, determining which
10、of several relevant rules is to be actually applied.Conflictcases may be international, when the choice is between the laws of several sovereign States; the norms resolving such conflicts are called conflict rules of the international type.Conflicts may also arise between differing laws of non-sover
11、eign parts of a sovereign State.Bartolus and Statutists (必读)Bartoluss method of resolving conflicts was based on a simplistic classification of local laws (statute) into two categories: real or personal. Real statutes were those that operated only within the territory of the enacting state but not b
12、eyond. In contrast, personal statutes operated beyond the territory of the enacting state and bound all persons that owed allegiance to it. Bartolus thought that this classification could resolve all potential conflicts because all statutes, both domestic and foreign, belonged to either the one or t
13、he other category, leaving neither gaps and doubts.Indirect and Direct Regulations (必读)Legal development has evolved two methods of dealing with facts of private international law - indirect and direct regulation. Both are applied side by side. Distinction is made between them according to the adopt
14、ed approach, the way of regulating facts.Indirect regulation is spoken of when a fact of private international law is regulated in two phases, with the help of rules established on two planes: (a) The rules related to the selection of the legal systems that may be taken into consideration, and to th
15、e choice of the applicable law, determining which of the competing systems of law is to be looked to for arriving at the decision of a concrete case. Accordingly the function of the first-plane rules is to resolve the conflict of competing legal systems, to give a guide to the applicable law, to ref
16、er to the norms governing the case. The remitting rules are therefore called conflict rules, which designate nothing but the applicable system of law, neither determining the substance of private international cases nor providing any guidance as to the rights and duties of the subjects of a particular legal relationship. (b) The rules designed for the actual solution of a given relationship are found in indirect regulation and are called positive r
