国际私法英文阅读(2)

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of the law of the place of jury. Obviously, the result could turn on which label the court chose for problem.

Although characterization is probably an inescapable part of thinking conceptually about any problem, its use entails a substantial risk. Such “decision-making by pigeon-hole” avoid the reasoning necessary to explain why a particular pigeon-hole should be chosen. Characterization encourages reflexive, mechanical choice rather than reflective inquiry into the reasons why a particular result is proper.

5.3 Renvoi

In American conflicts law, a reference to the law of another jurisdiction almost always is a reference to the law that the foreign state would apply to a purely domestic

problem. American courts rarely look to the conflicts law of the other jurisdiction as an aid to solving a choice-of-law problem. The focus, in conflicts parlance, is not on the “whole law” of the other state (that is, its substantive law plus its choice-of-law rules), but rather on its “internal law” (that is, the rules which the other state would use to decide a purely domestic problem).

If a judge in country A is referred by his own rule of the choice of a law to the “law” of country B, but the rule of the choice of law in B refers such a case to the “law” of A, then the judge in A must apply the internal law of his own country. The operation of this famous but regrettable doctrine (doctrine of single renvoi) demands that a reference to the law of a country shall mean a reference to the whole of its law.

A number of arguments have been advanced opposing the use of renvoi. Perhaps the weaker argument involves the fear that the court will be caught in an endless circle of references. It is easy to break the circle, however, because the forum can always employ its own law or, alternatively, the forum could use modern choice-of-law theories (such as comparative impairment) to end the deadlock. In any event, the theoretical possibility of endless circles generally should not preclude the use of

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