（4）Legislative Substantivism

In contrast, the substantivist method does not encounter the above difficulties when employed by the legislature, that is, by the body that has the unquestionable authority to promulgate new law that is meant to be applied prospectively only. During the twentieth century the substantivist method has been employed repeatedly in enacting uniform substantive rules intended to resolve multistate problems directly, without the intervention of choice-of-law rules.

At the international level, these rules originate in international conventions such as the 1980 United Nations Convention on the International Sale of Goods, which is now in force in 56 countries; the 1929 Warsaw Convention for the Unification of Certain Rules relating to International Carriage by Air; the 1956 Geneva Convention on the Contract for the International Carriage of Goods by Road; the 1964 Hague Convention on Uniform Sales Laws; and the 1973 Washington Convention Providing a Uniform Law on the Form of an International Will.

At the interstate level, one very productive source of uniform substantive rules is the National Conference of Commissioners of Uniform State Laws, which has produced approximately 200 uniform laws during the twentieth century. One of these uniform laws is the Uniform Commercial Code, which is now in force in all fifty states of the United States.

Obviously, by eliminating the multiplicity of substantive laws, the enactment of these uniform laws has also eliminated the possibility of conflicts of laws in the areas covered by the uniform laws. To that extent, the substantivist method has commensurably reduced the scope of operation of the selectivist method. This reduction is relatively small and, although it should continue to grow in the future, the growth will be slow. Thus, for the foreseeable future, the selectivist method will continue to dominate all efforts to resolve multistate conflicts of laws.

第二章 国际私法的历史

【案例2.1】美国马萨诸塞州的一个居民与该州的“杜威和阿尔米化学公司”缔结了一份书面雇用合同，同意他以化学工程师和化学家的身份替该公司在马萨诸塞州的实验室做研究工作。1935年9月，在雇用期中，雇主将其派往该公司在加利福尼亚州的一家分厂工作，作为暂时性的技术顾问以求改进雇主在那家分厂制造的产品的质量。他期望在他完成任务以后回到雇主在马萨诸塞州的实验室工作，但在此时，他不幸在加利福尼亚州遭到了伤害。于是，他便要求“加利福尼亚州工业事故委员会”判定“太平洋雇用保险公司”对其在被雇用期间于加利福尼亚州受到的伤害加以补偿。加利福尼亚州工业事故委员会因此责成该保险公司根据加利福尼亚州保险法所规定的保险补偿费对其进行补偿。

太平洋雇用保险公司则在加利福尼亚州地方上诉法院提出上诉，要求撤销加利福尼亚州工业事故委员会责成它对被雇用人的补偿。其根据有两点：第一，由于被雇用人是长期在马萨诸塞州的公司总部工作，而且只是暂时出差来加利福尼亚州并不幸遭受伤害的，所以他应当受马萨诸塞州工人补偿法的保护，而不应当受加利福尼亚州工人补偿法的保护；第二，加利福尼亚州工业事故委员会在适用加利福尼亚州法律的同时，拒绝给予马萨诸塞州法律以忠诚信用。然而，加利福尼亚州地方上诉法院驳回了该保险公司的上诉请求，美国最高法院也维持了原判。

在上述案件中，加利福尼亚州是侵权发生地，马萨诸塞州则是雇用关系合同缔结地。根据美国传统国际私法的规定，被雇用人的伤害应当适用雇用关系合同缔结地法，在该案中，也就是马萨诸塞州法律。然而，美国最高法院在该案中背离了美国传统国际私法理论所主张的方法，坚持适用侵权发生地法，即加利福尼亚州法律。美国最高法院之所以做出这一判决，在于它认识到，加利福尼亚州在该案中是侵权发生地州，而马萨诸塞州则是雇用关系发生地州，两个州对本案均有管辖权，且均有根据本州法律保护受雇佣者权利的利益。而法院地则刚好是侵权发生地的加利福尼亚州，而加利福尼亚州地方上诉法院显然认为，在本案中，该州的利益需要得到保护。

美国最高法院这一判决的意义在于，它表明只要法院地在该案中具有利益，那么它就可以适用法院地法，从而为“政府利益分析说”的出现和发展提供了肥沃的土壤。另一方面我们也可以看出，该学说在实践操作中很有可能导致法院地法的滥用。

【思考题】

1．巴托鲁斯何以被称为“国际私法之父”？ 2．萨维尼何以被称为“近代国际私法之父”？ 3

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该案的案情参见李双元、欧福永主编：《国际私法教学案例》，北京大学出版社2007年版，第30—32页。

3．试述当代国际私法的发展趋势。

【扩展性阅读材料】

1．李双元、吕国民：《萨维尼法学实践中一个矛盾现象之透视》，《浙江社会科学》2000年第2期。 2．韩德培、杜涛：《晚近国际私法立法的新发展》，《中国国际私法与比较法年刊》（2000年卷），法律出版社2000年版。

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3．Historical Roots: The Legacy of Savigny

These historical roots lie in the ideas of one of the greatest legal scholars of the nineteenth century, Friedrich Carl von Savigny. Savigny is primarily known as the founder of the historical school of jurisprudence and the great opponent of codification. Yet, he is also one of the fathers of modern conflicts law. Exactly 150 years ago, Savigny published volume VIII of his magnum opus, System des heutigen r?mischen Rechts. In this volume, he broke away from the unilateral method of the medieval statutists that had dominated for five hundred years and put private international law on a modern, multilateral foundation.

Conflicts rules, Savigny argued, must be neutral, i.e., they must not prefer particular parties, laws, or jurisdictions as such. To conform with this principle, he suggested that every legal relationship be governed by the law of the state or nation to which “it belongs, or to which it is subjected by virtue of its particular nature”, i.e., in which it has its “seat”. For Savigny, the idea of a such a “seat” of a relationship was only a metaphor for the best connection. He called it “a formal principle”, indicating that it needed to be filled with content under the circumstances of each case. With regard to obligations in particular, Savigny argued that in finding this connection, the primary factor should be the parties’ intentions. In the absence of a clear manifestation, these intentions should be inferred. Even objective choice-of-law criteria should reflect what the parties would have wanted had they thought about the problem. From these general premises, Savigny derived a concrete system of conflicts rules for international contracts.

The basic rule was freedom of choice. Savigny postulated that the parties to a contract should be allowed to select the applicable law. To be sure, this was not his original idea, but he nonetheless made it the centerpiece of his entire approach. He understood that the choice could be explicit or implicit. Of course, Savigny recognized that the parties’ freedom was not unbridled since they could not be allowed to escape certain mandatory norms.

In the absence of such a choice, Savigny called for objective rules that determine by neutral criteria which jurisdiction’s law will govern. In order to be neutral, these criteria had to be jurisdiction-selecting, i.e., independent of the content of the potentially applicable laws; they must also not give any preference to forum law nor to any party on grounds of his or her nationality. His basic principle reflects these aspirations: a contract was

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Mathias Reimann, Savigny’s Triumph? Choice of Law in Contracts Cases at the Close of The Twentieth Century, Virginia Journal of International Law Association, Vol. 39, 1999.

governed by the law of the jurisdiction to which the transaction most appropriately belonged. This most appropriate connection should be determined in careful consideration of all relevant circumstances. The answer could vary from case to case, but since Savigny did not wish to leave the result completely indeterminate, he provided a set of particular presumptions. In case of doubt, he thought that courts should resort to the place of performance, i.e., normally to the debtor’s domicile or principal place of business, since this was what the parties probably would have expected. Yet, in order to be more specific and to provide greater predictability, he distinguished between several kinds of contracts and considered different presumptions appropriate for each category. Of course, where necessary, these objective choice-of-law provisions had to yield to mandatory rules and to considerations of public policy.

Methodologically, Savigny attempted to steer a middle course between the Scylla of uncertainty and the Charybdis of inflexibility. This goal is evident in his overall approach where he combined a general principle--the seat of the legal relationship--with a list of factors guiding its application (domicile of the parties, location of property, place of certain acts, location of the forum). The striving for a combination of predictability and flexibility is even more obvious in particular areas of law, such as contracts. On the one hand, Savigny sought to provide guidance for the courts by concretizing his general approach through specific rules for the various types of contracts. On the other hand, he avoided rigidity by conceiving of these rules merely as generalized presumptions that could be overcome if the particular circumstances suggested a different result.