Section 1 Choice of Law Doctrine in Europe（欧洲的法律选择理论）

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1 Chapter 2 Historical Development of Choice of Law Doctrine (法律选择理论的历史发展)
Section 1 Choice of Law Doctrine in Europe（欧洲的法律选择理论） Section 2 Choice of Law Doctrine in America(美国的法律选择理论)

2 Keywords: governing law 准据法，应适用的法 choice of law doctrine 有关法律选择的学说 the Digest, Justininan’s Code 民法大全，查士丁尼法典 Glossator, Commentator 注释法学派（前期，后期） city-state 城市国家，城邦 Bartolus of Sassoferrato, doctrine of statutists 巴托鲁斯，法则区别说 Real statutes 物法 personal statutes 人法 Charles Dumoulin, A Commentary on the Customary Law of Paris 杜摩兰，《巴黎习惯法评述》 Bertrand D'Argentré 达让特莱 Jean Bodin 博丹 Ulricus Huber, doctrine of comity 胡伯，礼让说 Carl Georg von Wächter, primacy of lex fori 华赫特，法院地法优先说 Friedrich Carl von Savigny, doctrine of seat of legal relationships 萨维尼，法律关系本作说 the System of Modern Roman Law 《现代罗马法体系》 A Treatise on the Conflict of Laws and the Limits of Their Operation in Respect of Place and Time 《法律冲突与法律规则的地域和时间范围》 connecting factors连结点 bilateral choice-of-law rules 双边冲突规则;双边法律选择规则 Pasquale Stanislao Mancini，Nationality as the Basis of the Law of Nations 孟西尼，《国籍乃国际法的基础》 Albert Venn Dicey, doctrine of “vested rights 戴赛，既得权说

3 Samueal Livermore 利夫摩尔
Joseph Story, Commentaries on the Conflict of Laws 斯托雷，《法律冲突法评论》 Joseph H. Beale, the Restatement of the Law, Conflict of Laws 比尔，《冲突法重述》 the American Law Institute 美国法学会 conflicts “revolution” 冲突法革命 Walter Wheeler Cook, local law theory 库克，本地法说 David F. Cavers, Principles of Preference 卡弗斯，优先选择原则 Methodology 方法 “jurisdiction-selecting” rules “管辖权选择”规则 Brainerd Currie, governmental interest analysis 柯里，政府利益分析说 Robert A. Leflar, “Better-Law” Approach 莱弗拉尔，“较好法”说 Albert A. Ehrenzweig，Doctrine of Lex Fori 艾伦茨威格，法院地法说 forum shopping 挑选法院 forum non conveniens 不方便法院 William Baxter, Comparative-Impairment Theory 巴克斯特，比较损害说 Willis L.M. Reese, “most-significant-relationship” 里斯，最重要联系说

4 Section 1 Choice of Law Doctrine in Europe

5 1. Italy:Bartolus and the the Statutist Theory [ 法则区别说 ]
1.city-states and conflict of laws 2.Bartolus’s method of resolving conflicts: classify local laws (statuta) into two categories: real or personal. Real statutes were those that operated only within the territory of the enacting state but not beyond. In contrast, personal statutes operated beyond the territory of the enacting state and bound all persons that owed allegiance to it. Bartolus’ criteria for classifying a statute into real or personal were completely mechanical in that they were based solely on the statute’s wording. For example, he argued that if the statute’s first words referred to a person, such as saying that “the first-born son shall succeed to the property, ” then the statute was personal. If the words referred to a thing, such as by saying that “the property shall pass to the first-born son,” then the statute was real.

6 意大利的法则区别说：巴托鲁斯 （Bartolus ）
从法则本身的性质入手，把“法则”分为“物的法则”、“人的法则”。物的法则，即是关于不动产的法则，适用于制订该法则的城市国家领域内的一切不动产，但不适用于这个城市国家的领域之外。人的法则只适用于制订该法则的城市国家的居民，而不适用于非居民，但该城市国家的居民居住在域外时，该法则仍对之适用。关于行为方式的法则，应适用于在制定该法则的城市国家域内所为的一切行为。

7 2. France: Dumoulin and D'Argentré
During the 15th and 16th centuries, the statutist theory was developed further in France whose diverse provinces and local laws operated under a unified crown, a combination of diversity and a unifying principle analogous to that of the Italian city-states. The French approach, developed prominently by Dumoulin, emphasized personal law and considered the intention of the parties themselves as relevant While Dumoulin argued for a presumption in favour of the classification of laws as personal, D'Argentré argued that laws should be presumptively territorial and only exceptionally personal, and that mixed statutes should also be classified based on territorial points of connection.

8 法国的法则区别说 杜摩兰(Charles Dumoulin ）：把法则分为人法、物法和行为法三类，但只有在不依据双方当事人的自主意思而直接取决于法律的强制性时，才有必要作这种划分。在<巴黎习惯法评述>一书中提出了 “意思自治”原则:在契约关系中，应该适用当事人自主选择（明示或默示）的习惯法. 达让特莱(D’Argentre）： （1）一切习惯法原则上都是属地的，仅在立法者的境内有效。 （2）属地原则也有例外，这就是纯粹的人的法则。 （3）除了人法和物法之外，还有一种“混合法则”，混合法则应当是属地法。

9 3. The Dutch Contribution: Huber and Comity
Ulricus Huber ( ) postulated the following three axioms: 1)The laws of each state have force within its territory but not beyond. 2)These laws bind all those who are found within the territory, whether permanently or temporarily. 3)Out of comity, foreign laws may be applied so that rights acquired under them can retain their force, provided that they do not prejudice the state’s power or rights.

10 荷兰的国际礼让说 胡伯（Ulricus Huber ( ) ）<论罗马法与现行法> 中的三原则： （1）每一个国家的法律在其境内有效，但在境外则无效 （2） 这些法律拘束所有出现在其境内的人，不论是永久的还是暂时的 （3） 出于礼让，外国法可以得到适用以使依这些法律获得的权利能够保持其效力，只要他们不损害本国的权力或权利。 [法律的属地性；适用外国法的理由。]

11 4. German Contribution: Savigny
Rather than focusing on the conflicting laws and trying to ascertain their intended spatial reach, Savigny began his analysis from the opposite end. He focused on disputes or “legal relationships” and then sought to identify the state in which each relationship has its “seat” . He divided the field into broad categories corresponding to the major divisions of private law (family law , successions, property, contracts, torts, etc.) and then, through “connecting factors” such as domicile, situs, or the place of the transaction or event, identified those inherent characteristics of each legal relationship that place its seat in one state rather than another. The result of this classificatory approach was a network of neutral, evenhanded, bilateral choice-of-law rules that placed foreign law on parity with forum law and assigned each legal relationship to one particular state . Savigny argued forcefully that the objective of these rules should be to ensure “international uniformity of decisions” regardless of forum.

12 德国萨维尼的“法律关系本座说” 1849年<现代罗马法体系>(第八卷) “法律冲突与法律规则的地域和时间范围”中提出: （1）法律冲突源于法律规则对法律关系支配上的冲突。法律冲突是属地法调整同一法律关系上的冲突。 （2）这种冲突采用主权独立原则来解决是不可行的 。应采用共同的原则：“世界各国和整个人类的共同利益决定了各国在处理案件时最好采取互惠原则，并坚持本国市民和外国人之间的平等原则。这一平等原则的充分发挥不仅会使外国人在每一个特定国家都跟其本国国民一样（这里包括待遇平等），而且，对于存在法律冲突的案件，不管它是在这一国家还是在那一国家提起，其判决结果都应该一样。”

13 （3）“在审理与不同独立主权国家具有联系的案件（法律关系）时，法官应适用案件所属的本地法，不管他是法官自己国家的法律，还是外国的法律。”
例外情况 “①强行性的实在法，他们与法律的自由适用是不一致的，这种法律的自由适用是不管特定国家的限制的。②外国法律制度的存在在我国没有被完全认识，因此，它不能得到我国法院的保护。”

14 （4）法律关系本地法的确定，即 “为每一种法律关系找到其在本质上所属的地域（法律关系的本座所在地）” ：
对法律关系的分类：①身份（权利能力和行为能力）；②物；③债；④继承；⑤家庭（家庭关系）：婚姻；父权；监护。 对法律关系“本座”的归纳：“考虑到决定每一种法律关系的‘本座’的选择的各种事实上的联系，每一种特定的法律关系的‘本座’的选择通常是比较固定的，这可归纳为：法律关系所涉及的人的住所；法律关系的标的物所在地；法律行为实施地；法院所在地。”

15 5. Italy: Macini’s Doctrine
Mancini argued in an 1851 public address entitled 'Nationality as the Basis of the Law of Nations', for an international system founded on the concept of nationality. On the basis of this approach, Mancini argued that the applicable law in a private international law dispute should (generally) be determined by the nationality of the parties. Mancini did not exclude the operation of local law in some circumstances. He drew a distinction, between personal and public laws. Personal laws were part of the expression of the individual will in the State, a reflection of their personality and personal autonomy, and must be given effect internationally. Public laws, however, were part of the definition of national character by a nation. These were both important enough to override the application of foreign law, and also specific enough to national character to be limited to the territory of the State.

16 意大利孟西尼 1851年发表演说<国籍乃国际法的基础>,主张每个人都适用他本民族的法律. 提出了法律适用的三个原则: 1.民族主义(即国籍)的原则 2.意思自治原则 3.公共秩序原则

17 6. England: Dicey and Vested Rights
英国戴赛的既得权说 1896年出版<法律冲突法>一书中提 “既得权说”: 凡依他国法律有效取得的任何权利，一般都应为英国法院所承认与执行，而非有效取得的权利，英国法院则不应承认与执行；但如承认与执行这种依外国法合法取得的权利与英国成文法的规定、英国的公共政策和道德原则，以及国家主权相抵触，则可作为例外，而不予承认与执行；但是，为了判定某种既得权利的性质，他认为应该依据产生此种权利的该外国的法律；当事人协议选择的法律具有决定他们之间的法律关系的效力。

18 Section 2 Choice of Law Doctrine in America
1．Story and His Comity Commentaries on the Conflict of Laws (1834) [1]Every nation possesses an exclusive sovereignty and jurisdiction within its territory…[and its laws ]affect, and bind directly all property, whether real or personal, within its territory and all persons, who are residents within it, …and also all contracts made, and acts done within it. … [2]No state or nation can, by its laws, directly affect, or bind property out of its own territory, or bind persons not resident therein … [3]Whatever force and obligation the laws of one country have in another, depend solely upon the laws, and municipal regulations of the latter, that is to say, upon its own proper jurisprudence and polity, and upon its own express or tacit consent. A state may prohibit the operation of all [or of some] foreign laws, and the rights growing out of them, within its own territories. …When [its law is] silent, then, and then only, can the question properly arise, what law is to govern in the absence of a clear declaration of the sovereign will.…

19 [4]The real difficulty is to ascertain, what principles in point of public convenience ought to regulate the conduct of nations on this subject in regard to each other …. The phrase ‘comity of nations’… is the most appropriate phrase to express the true foundation and extent of the obligation of the laws of one nation within the territories of another. It is derived altogether from the voluntary consent of the latter; and is inadmissible, when it is contrary to its known policy, or prejudicial to its interests. … Story took the next step of erecting around these general parameters a comprehensive system of bilateral choice-of-law rules which have been followed by American courts through the beginning of the 20th century.

20 美国斯托雷的国际礼让说 ： 1834年发表<法律冲突法评论>一书,提出: （1）每个国家在它自己的领土内享有一种专属的主权和管辖权，… （2）任何州或国家都不能以其法律直接影响或约束其境外的财产，或约束不在其境内居住的人… （3）一国法律在另一国的任何效力和约束力完全取决于该另一国的法律和国内规范，… （4）…“国际礼让”这个词…是表明一国法律在另一国领土范围内产生约束力的真正的基础和产生约束力的范围的最合适的词。它完全源于另一国自愿的同意；如果与其公共政策相左或有损于它的利益则得不到承认。

21 2．Beale and the Vested Rights
Conflict of Laws stated that “the law of a state prevails throughout its boundaries and, generally speaking, not outside them,” and that “Law operates by extending its power over acts done throughout the territory within its jurisdiction and creating out of those acts new rights and obligations. … It follows also that not only must the law extend over the whole territory subject to it and apply to every act done there, but only one law can so apply.… By its very nature law must apply to everything and must exclusively apply to everything within the boundary of its jurisdiction.” Around this doctrine, Beale erected a rigid system of bilateral choice-of-law rules that purported to reflect the current American judicial practice. The doctrine and rules were etched in stone in the Restatement of the Law, Conflict of Laws .

22 比尔在其《法律冲突论》一书中提出:“一州的法律在其境内有最高的效力，一般说来，在其境外就没有” “法律的运作表现为对在其管辖权境内所为的行为产生效力并由这些行为创设出新的权利义务。…由此也可以说该法律不仅必须对受其管辖的整个领土有效并适用于该领域内所为的每一个行为，而且只有一部法律可以这样适用。…根据其本身的性质，法律必须适用于其管辖权境内的一切并且必须是排他地适用于一切.” 比尔将既得权理论惯穿于其人报告员起草的《第一次冲突法重述》,确立了一系列法律选择规则.

23 3．Conflicts “Revolution” and Its Doctrines
The term conflicts “revolution” has been used widely to denote the intellectual movement culminating in the mid-1960s which preached the demolition of the established conflicts orthodoxy embodied in the first Restatement of Conflicts.

24 A. Walter Wheeler Cook (1873-1943) and Local Law Theory
The Logical Bases 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 rights but a right created by its own law.

25 B. David F. Cavers (1902-1986) and Principles of Preference
expose the mechanical nature of the traditional methodology, which he compared to a slot-machine that was programmed to select the applicable law in a “blindfold” fashion, based solely on territorial contacts and without regard to the content of the implicated laws; this exclusive reliance on territorial contacts and the insistence on using “jurisdiction-selecting” rules not only prevented a more individualized treatment of conflicts cases, but also prevented intelligent choices; He argued for a transformation of the choice-of-law process from one of choosing between jurisdictions without regard to the way each such jurisdiction would wish to regulate the multistate case at stake, to one of choosing among the conflicting rules of law in light of the result that the application of each rule would yield in the particular case.

26 C. Brainerd Currie (1912-1965) and Interest Analysis
(a) Normally, even in cases involving foreign elements, the court should be expected, as a matter of course, to apply the rule of decision found in the law of the forum. (b) When a court is asked to apply the law of a foreign state different from the law of the forum, it should inquire into the policies expressed in the respective laws, and into the circumstances in which it is reasonable for the respective states to assert an interest in the application of those policies. In making these determinations the court should employ the ordinary process of construction and interpretation. (c) If the court finds that one state has an interest in the application of its policy in the circumstances of the case and the other has none, it should apply the law of the only interested state.

27 (d) If the court finds an apparent conflict between the interests of the two states it should reconsider. A more moderate and restrained interpretation of the policy or interest of one state or the other may avoid conflict. (e) If, upon reconsideration, the court finds that a conflict between the legitimate interests of the two states is unavoidable, it should apply the law of the forum. (f) If the forum is disinterested, but an unavoidable conflict exists between the interests of two other states, and the court cannot with justice decline to adjudicate the case, it should apply the law of the forum, at least if that law corresponds with the law of one of the other states. Alternatively, the court might decide the case by a candid exercise of legislative discretion, resolving the conflict as it believes it would be resolved by a supreme legislative body having power to determine which interest should be required to yield.

28 (g) The conflict of interest between states will result in different dispositions of the same problem, depending on where the action is brought. If with respect to a particular problem this appears seriously to infringe a strong national interest in uniformity of decision, the court should not attempt to improvise a solution sacrificing the legitimate interest of its own state, but should leave to Congress, exercising its power under the Full Faith and Credit Clause, the determination of which interest shall be required to yield.

29 柯里的“政府利益分析法”： “ ①通常，即使在涉及外州因素的案件中，法院理所当然地应该适用法院地法中的判决规则。 ②当法院被要求适用与法院地法不同的外州法律时，它应查明体现在各该法律中的政策以及各州能合理地主张实施那些政策的利益的情形。在做这些决定时，法院应采用通常的解释方法。 ③如果法院认定根据案件的有关情形一州对适用其政策有利益而另一州无利益时，它应该适用那唯一有利益的州的法律。

30 ④如果法院认定两个州的利益存在明显冲突，它应做重新考虑。对一州或另一州的政策或利益做更适度和限定解释或许可以避免冲突。
⑤如果，经重新考虑，法院认定两州合法利益的冲突是不可避免的，它应适用法院地法。 ⑥如果法院地无利益，但在另两个州的利益间存在不可避免的冲突，法院出于公正又不能拒绝裁决该案时，它应适用法院地法，至少在该法律与那两个州之一的法律相吻合时。另外，法院也可大胆行使某种立法裁量权判决该案，以它认为一个有权决定哪种利益应该让步的一个最高立法机关会采取的解决方式来解决冲突。

31 ⑦州与州之间的利益冲突会导致对同一问题依案件在不同州提起而产生不同的解决结果。如果就某一特定问题，看来会严重侵害到一项重大的国家对判决一致性的利益时，法院不应损害其本州的合法利益而试图及时作出判决，它应留待国会依充分诚信条款行使其权利决定哪一利益应做让步。” ——是一种冲突分析方法：政策/利益分析法 ——“虚假冲突”与“真实冲突”/“未做规定的情形”

32 D. Professor Robert A.Leflar and the “Better-Law” Approach
the first Restatement’s rules should be replaced not by another set of rules but rather by a set of flexible “choice-influencing considerations” that should guide the court’s choice of the applicable law: (a) Predictability of results; (b) Maintenance of interstate and international order; (c) Simplification of the judicial task; (d) Application of the better rule of law.

33 莱弗拉尔教授的“较好法”方法：1966年《影响法律选择的考虑因素》《再论影响法律选择的考虑因素》两文所提出的考虑因素包括：(1)结果的可预见性；(2)州际和国际秩序的维持；(3)司法任务的简单化；(4)法院地政府利益的促进；(5)适用较好的法律规范。

34 E. Professor Albert A. Ehrenzweig(1906-l 974) and Doctrine of Lex Fori
the application of foreign law is the exception rather than the rule --- an exception tolerated only in cases for which the forum legislature or the judiciary has established so-called “true” choice-of-law rules. When no such “true” rules exist, the court is to apply the lex fori, unless an examination of the policies underlying that law reveals that it is not intended for application to the case at hand. Even in such a case the court should not examine the policies of the conflicting foreign rule but instead should dismiss the case without prejudice. If dismissal is inappropriate in the particular case, the court then should apply the lex fori as residual law, “as a matter of non-choice.”

35 艾伦茨威格的“法院地法原则”：外国法的适用并不是一项规则而只是一项例外，这种例外只存在于法院地的立法机关或司法机关已确立了“真实”的冲突法规则的场合。如果没有这种“真实”的规则存在，法院就适用法院地法，除非对该法所含政策的分析表明，该法无意适用于目前的案件。即使在这样的情况下，法院也不应去审查相冲突的外国法的政策而应该驳回案件。如果在具体案件中，驳回是不适当的时，法院应以无选择而把法院地法当作仅剩的可以适用的法律来适用。

36 F. Baxter’s Comparative-Impairment Approach
Baxter does not accept Currie’s view that the application of the lex fori is the only possible solution for true conflicts. Baxter distinguishes between two types of governmental interests or objectives, namely, the “internal” and the “external.” The internal objectives are those that underlie each state’s resolution of conflicting private interests in wholly domestic situations. The external objectives are “the objectives of each state to make effective in all situations involving persons as to whom it has responsibility for legal ordering, the resolution of contending private interests the state has made for local purposes.” In a true conflict, this external objective conflicts with the corresponding external objective of a foreign state. Rather than subordinating the external objective of the foreign state to that of the forum, Baxter would “subordinate, in the particular case the external objective of the state whose internal objective will be least impaired in general scope and impact by subordination on cases like the one at hand.” In other words, Baxter would apply the law of that state whose interests would be most impaired if its law were not applied.

37 巴克斯特教授的比较损害方法：1963年《法律选择与联邦体系》一文反对传统的以冲突规范选择法律的方法，但与柯里不同的是，他提出，在真实冲突的情况下，法院应决定哪个州的政策会因为其法律得不到适用而受到更大的损害。（路易斯安娜州冲突法）

38 G. The Restatement Second and the “most-significant-relationship”
The guiding principles of the choice-of-law process, according to the Restatement (Second), are set forth in §6 which reads as follows: (1)A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law. (2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include (a) the needs of the interstate and international systems, (b) the relevant policies of the forum, (c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,

39 (d) the protection of justified expectations,
(e) the basic policies underlying the particular field of law, (f) certainty, predictability and uniformity of result, and (g) ease in the determination and application of the law to be applied. The “most-significant-relationship” formula is the other cornerstone of the Restatement (Second). While §6 articulates the principles and policies that should guide the choice-of-law process, the most-significant-relationship formula, encountered throughout the Restatement (Second), describes the objective of that process, namely, to apply the law of the state that, with regard to the particular issue, has the most significant relationship with the parties and the dispute.

40 里斯的“最密切联系说” 与《第二次冲突法重述》的方法：
（l）法院，除受宪法约束外，应遵循本州关于法律选择的立法规定。 （2）在无此种规定时，与应适用的法律规则的选择有关的因素包括： ①州际及国际体制的需要； ②法院地的相关政策； ③其他利害关系州的相关政策以及在决定特定问题时这些州的有关利益； ④对正当期望的保护； ⑤特定领域法律所依据的基本政策； ⑥结果的确定性、可预见性和一致性，以及 ⑦将予适用的法律的易于确定性和易于适用性。

41 Georgia W. Babcock, Appellant, v. Mabel B
Georgia W. Babcock, Appellant, v. Mabel B. Jackson, as Executrix of William H. Jackson, Deceased, Respondent Court of Appeals of New York 12 N.Y.2d 473; 191 N.E.2d 279; 240 N.Y.S.2d 743; 1963 N.Y. LEXIS 1185; 95 A.L.R.2d 1 January 23, 1963, Argued May 9, 1963, Decided On Friday, September 16, 1960, Miss Georgia Babcock and her friends, Mr. and Mrs. William Jackson, all residents of Rochester, left that city in Mr. Jackson's automobile, Miss Babcock as guest, for a week-end trip to Canada. Some hours later, as Mr. Jackson was driving in the Province of Ontario, he apparently lost control of the car; it went off the highway into an adjacent stone wall, and Miss Babcock was seriously injured.

42 Upon her return to New York , she brought action against William Jackson, alleging negligence on his part in operating his automobile. ……Recovery? Jurisdiction &Governing law At the time of the accident, there was in force in Ontario a statute providing that "the owner or driver of a motor vehicle, other than a vehicle operated in the business of carrying passengers for compensation, is not liable for any loss or damage resulting from bodily injury to, or the death of any person being carried in * * * the motor vehicle" . Even though no such bar is recognized under this State's substantive law of torts , the defendant moved to dismiss the complaint on the ground that the law of the place where the accident occurred governs and that Ontario's guest statute bars recovery. The court at Special Term, agreeing with the defendant, granted the motion and the Appellate Division, over a strong dissent by Justice Halpern, affirmed the judgment of dismissal without opinion.

43 Shall the law of the place of the tort invariably govern the availability of relief for the tort or shall the applicable choice of law rule also reflect a consideration of other factors which are relevant to the purposes served by the enforcement or denial of the remedy? [Follow the established rule or change it?]

44 The traditional choice of law rule, embodied in the original Restatement of Conflict of Laws (§ 384), and until recently unquestioningly followed in this court has been that the substantive rights and liabilities arising out of a tortious occurrence are determinable by the law of the place of the tort. It had its conceptual foundation in the vested rights doctrine, namely, that a right to recover for a foreign tort owes its creation to the law of the jurisdiction where the injury occurred and depends for its existence and extent solely on such law. Although espoused by such great figures as Justice Holmes and Professor Beale , the vested rights doctrine has long since been discredited because it fails to take account of underlying policy considerations in evaluating the significance to be ascribed to the circumstance that an act had a foreign situs in determining the rights and liabilities which arise out of that act. "The vice of the vested rights theory", it has been aptly stated, "is that it affects to decide concrete cases upon generalities which do not state the practical considerations involved". More particularly, as applied to torts, the theory ignores the interest which jurisdictions other than that where the tort occurred may have in the resolution of particular issues. It is for this very reason that, despite the advantages of certainty, ease of application and predictability which it affords , there has in recent years been increasing criticism of the traditional rule by commentators and a judicial trend towards its abandonment or modification.

45 The "center of gravity" or "grouping of contacts" doctrine adopted by this court in conflicts cases involving contracts impresses us as likewise affording the appropriate approach for accommodating the competing interests in tort cases with multi-state contacts. Justice, fairness and "the best practical result" may best be achieved by giving controlling effect to the law of the jurisdiction which, because of its relationship or contact with the occurrence or the parties, has the greatest concern with the specific issue raised in the litigation. The merit of such a rule is that "it gives to the place 'having the most interest in the problem' paramount control over the legal issues arising out of a particular factual context" and thereby allows the forum to apply "the policy of the jurisdiction 'most intimately concerned with the outcome of [the] particular litigation.'"

46 Comparison of the relative "contacts" and "interests" of New York and Ontario in this litigation, vis-a-vis the issue here presented, makes it clear that the concern of New York is unquestionably the greater and more direct and that the interest of Ontario is at best minimal. The present action involves injuries sustained by a New York guest as the result of the negligence of a New York host in the operation of an automobile, garaged, licensed and undoubtedly insured in New York, in the course of a week-end journey which began and was to end there. In sharp contrast, Ontario's sole relationship with the occurrence is the purely adventitious circumstance that the accident occurred there.

47 New York's policy of requiring a tortfeasor to compensate his guest for injuries caused by his negligence cannot be doubted -- as attested by the fact that the Legislature of this State has repeatedly refused to enact a statute denying or limiting recovery in such cases -- and our courts have neither reason nor warrant for departing from that policy simply because the accident, solely affecting New York residents and arising out of the operation of a New York based automobile, happened beyond its borders. Per contra, Ontario has no conceivable interest in denying a remedy to a New York guest against his New York host for injuries suffered in Ontario by reason of conduct which was tortious under Ontario law. The object of Ontario's guest statute, it has been said, is "to prevent the fraudulent assertion of claims by passengers, in collusion with the drivers, against insurance companies" and, quite obviously, the fraudulent claims intended to be prevented by the statute are those asserted against Ontario defendants and their insurance carriers, not New York defendants and their insurance carriers. Whether New York defendants are imposed upon or their insurers defrauded by a New York plaintiff is scarcely a valid legislative concern of Ontario simply because the accident occurred there, any more so than if the accident had happened in some other jurisdiction.

48 Although the traditional rule has in the past been applied by this court in giving controlling effect to the guest statute of the foreign jurisdiction in which the accident occurred , it is not amiss to point out that the question here posed was neither raised nor considered in those cases and that the question has never been presented in so stark a manner as in the case before us with a statute so unique as Ontario's. Be that as it may, however, reconsideration of the inflexible traditional rule persuades us, as already indicated, that, in failing to take into account essential policy considerations and objectives, its application may lead to unjust and anomalous results. This being so, the rule, formulated as it was by the courts, should be discarded.

49 In conclusion, then, there is no reason why all issues arising out of a tort claim must be resolved by reference to the law of the same jurisdiction. Where the issue involves standards of conduct, it is more than likely that it is the law of the place of the tort which will be controlling but the disposition of other issues must turn, as does the issue of the standard of conduct itself, on the law of the jurisdiction which has the strongest interest in the resolution of the particular issue presented.[分割论] The judgment appealed from should be reversed, with costs, and the motion to dismiss the complaint denied.

50 思考题 1．从国际私法的产生与发展分析影响国际私法发展变化的因素。
2．试述萨维尼的“法律关系本座说”及其对后世冲突法的理论和实践发展的影响。 3．美国传统国际私法理论的特点。 4．美国“冲突法革命”对当代国际私法发展的影响。

51 6．名词概念：法则区别说；巴托鲁斯；杜摩兰；达让特莱；国际礼让说；胡伯；法律关系本座说；萨维尼；孟西尼；戴赛；既得权说；斯托雷；比尔；库克；“本地法”理论；卡弗斯；政府利益分析法；柯里；威廉•巴克斯特；比较损害方法；莱弗拉尔；“较好法”方法；艾伦茨威格；法院地法原则；里斯；最密切联系说