Resumption of work. The focus is on summarizing viewpoints, supplementing understanding, and reflecting on experiences.Chapter Three The Rise of International Private LawSection One The Innovation of Theoretical Doctrines in International Private LawThis section mainly introduces the viewpoints and developments of international private law theories in the civil law system and the Anglo-American common law system since the 20th century, as well as the development of international private law theories in China.1. Innovation of International Private Law Theories in the Civil Law System(1) Netherlands: Theory of Innovation in International Private Law1. Jet, “Human-Centered Theory”: Emphasizes that international private law is a private law that addresses issues from a specific perspective, dealing with the legal rights and obligations themselves; however, it must be studied from a global perspective using international methods.· Supplement: Regarding the aforementioned international methods, Jet proposed some universally applicable conflict norms for adjusting legal conflicts while also attempting to propose some international substantive law norms that adjust the human community and human life. This can actually be linked to the viewpoint of including unified substantive law norms in international private law. It is evident that Jet also holds a universalist view of international private law.2. Jean Costes, Empirical International Private Law: Argues that international private law should belong to the domestic laws of each country; advocates focusing on the corpse norms of international private law, treating foreign laws and regulations as applicable as domestic laws; and promotes the use of principles of justice to address international private law issues.(2) Germany: Movement for the Innovation of International Private Law1. Frangenstein, Comprehensive System Theory of International Private Law: Insists that the universal nature of international private law originates from its own rights and inherent attributes; adopts a speculative deductive method as the guiding method for research.Frangenstein believes that there are objectively two “primary connecting points”: one is the connection point between the law and the relevant person’s nationality, and the other is the connection point between the law and the relevant territory. Through these connecting points, relevant countries may apply their own substantive law or the substantive law of other countries. However, those subjectively designated in legal choices belong to “pseudo-connecting points,” which constitute a denial of international private law.2. Zitelmann, Universalist View of International Private Law: Believes that international private law arises from the coexistence of numerous countries and legal systems, and that different legal systems need to be regulated by a higher and broader system to determine their effectiveness; thus, he distinguishes international private law into pure theoretical international private law and applied international private law, further distinguishing international international private law and domestic international private law, advocating for the establishment of international international private law to compensate for the deficiencies of existing domestic international private laws in various countries.· Supplement: Zitelmann distinguishes national sovereignty into personal sovereignty and territorial sovereignty, believing that conflicts may arise between the two in different countries; in conflicts, the state, as a territorial entity, should prioritize territorial sovereignty. He also divides national laws into personal laws, property laws, and territorial or special laws, applying different principles accordingly. It can be seen that here, the territorial principle is prioritized, advocating for the primacy of territorial sovereignty.3. Makarov, “Minimum Requirements Theory”: Advocates that international private law is completely independent and must analyze and address legal conflicts based on its own rules, which is also the universalist thought of international private law.4. Label, Comparative International Private Law Doctrines: Argues that international private law addresses issues involving different legal systems, thus each country must apply its own domestic law as well as foreign domestic law.· Supplement: Regarding the comparative international private law school, it emphasizes that both internal and external factors must be considered. By employing comparative law for research, it aims to discover the similarities and differences in the conflict law systems of various countries and abstract new conflict rules that can be universally accepted by the international community, thereby achieving the unification of conflict laws among countries. Their methodology will greatly assist the movement towards the unification of international private law.5. Kegel, Interest Law View of International Private Law: Extracted the principles of international private law, arguing that its essence is interest, which can be categorized into political interests, substantive coordination interests, and minimum conflict interests; clarifying that when resolving legal conflicts, national interests and international community interests must be considered, combining the two for accurate legal application.· Supplement: Wang Geer proposed six principles of international private law, namely the principle of public policy, the principle of substantive coordination, the principle of the purpose of substantive law, the principle of minimum conflict, the principle of enforceability of judgments, and the principle of political interests. Kegel’s viewpoint is based on the analysis of these principles.6. Mann, International Private Law Restricted by International Public Law: Advocates for a correct analysis of the relationship between international private law and international public law, believing that international public law has a restrictive function on international private law.7. Wang Geer, Theory of Prerequisite Issues in International Private Law: Advocates for reconciling universalism and particularism in international private law, promoting the search for commonalities in the international private laws of various countries to formulate new conflict rules that can be universally accepted by the international community, reducing factors that lead to legal conflicts. Wang also pioneered the exploration of prerequisite issues/accessory issues in conflict law systems.· Supplement: Regarding prerequisite issues, Wang advocates that the conflict rules of the country to which the main issue’s governing law belongs should be used to select the governing law for prerequisite issues; in contrast, some scholars advocate using the conflict rules of the court’s location to resolve the governing law for prerequisite issues.8. Otto von Freund, Comparative International Private Law: Similar to the viewpoint of comparative international private law in point 4, he believes that international private law consists of the laws that need to be chosen in handling foreign civil cases, the judicial jurisdiction that needs to be chosen, and the unified substantive laws formulated by many countries due to the expanding scope of legal choices. He also emphasizes the function of the public order reservation system, advocating for the formulation of some unified substantive norms to eliminate legal conflicts and avoid making choices regarding the domestic laws of different countries. Reference: If a country has more opportunities to apply foreign law according to its own conflict law system, the role of the public order reservation system will also increase.(3) France: Development of International Private Law Doctrines1. Bie, Updating the Domestic Law Paradigm: Argues that legislative discrepancies lead to the emergence of legal conflicts, and that the purpose of international private law is to ensure the effectiveness of legislation in various countries; advocates that both international private law and international public law address sovereign conflicts, with international private law being a legal department that derives rules for adjusting personal relationships from the international public law rules that adjust the relationships between sovereign states.Based on his previous viewpoints, he categorizes the attributes of law into universality and regularity, analyzing the nature of personal law and territorial law; further distinguishing laws into personal protection laws and social protection laws. Reference: In every case, a smaller sacrifice should be made: if universality is sacrificed, the law has extraterritorial effect; if regularity is sacrificed, the law is territorial law. It is this viewpoint that leads to his “principle of less sacrifice,” suggesting that this viewpoint almost returns to the theory of legal distinction in methodology.2. Nipoye, Nationalist View of International Private Law: Argues that the vast majority of laws primarily possess the attribute of universal applicability, and only then the attribute of regular applicability; explicitly opposes the internationalist view and the principle of domestic law priority, proposing to replace domestic law with the law of the place of residence as personal law. Overall, his viewpoint is relatively radical.3. Paul Lelebo, Compromise International Private Law View: Also believes that international private law is part of domestic law, but advocates that the national interests contained in international private law are the interests of each country in international commercial exchanges. Reference: It is equally important to maintain significant political interests (i.e., common interests within each country) without neglecting such interests (referring to private interests). It can be said that she comprehensively considers various factors.4. Henry Batifol, Specialism International Private Law View: Formulated the “Comprehensive International Private Law View,” believing that the purpose of international private law is to explore the extent to which the similarities of issues can lead people to consider unifying the international private law rules of various countries, or at least bringing the rules of various countries closer together or in what direction to unify or approach.(4) Other Civil Law System Countries1. Greece, Franciskakis, Direct Applicability of Law: He was the first to use the term “directly applicable law”, advocating that such mandatory legal norms can be directly applied to foreign civil relations, bypassing the invocation of traditional conflict norms.2. Czech Republic, Kalansky, Thoughts on the Unification of International Private Law: Advocates that international private law oscillates between the territoriality of domestic law and the universality of international public law, with a functional connection between the two.· Supplement: Some scholars emphasize that the social relations adjusted by international private law only possess the nature of civil law; Kalansky’s rebuttal to this viewpoint is that although international private law adjusts civil and commercial legal relations between non-sovereign entities, this relationship reflects the internationalization of production and commodity exchange, thus reflecting the internationalization of general social life. Therefore, this civil law relationship must constitute an important part of international relations. To adjust these relationships, it cannot rely on the legal systems of individual countries, but should seek to formulate unified conflict norms and unified substantive norms as much as possible.In summary, I strongly agree with his viewpoint. Kalansky particularly emphasizes the thoughts of unification and substantialization of international private law, which also has certain implications for the current development and cooperation trends of international private law, and in his era, this was very forward-looking.3. Japan, Yamada Sanryo: A clear tendency centered on national sovereignty.4. Italy, Anzilotti, Dualism International Private Law Theory: Advocates the dual relationship between international law and domestic law, emphasizing that the two belong to different legal orders—international law has the nature of treaty law, based on the principle of “agreements must be observed,” which falls within the realm of ethical principles (political principles), not legal principles.2. Innovation of International Private Law Theories in the Anglo-American Common Law System(1) United Kingdom: Updates in International Private Law1. Morris, Theory of Fairness in Conflict Law: Proposes the need for a theory of fairness in international private law, arguing that British courts apply foreign law to maintain fairness between parties, rather than to show courtesy to foreign entities or protect the vested rights of parties.2. Wishart: Advocates that a country’s domestic law should include both substantive law and conflict law, allowing judges to apply foreign law based on their country’s conflict law.In summary, the development of international private law theories in the UK since World War II has been significantly influenced by Dicey and his vested rights theory, but many new changes have also occurred. Firstly, there is a theoretical expansion regarding the applicable law for contracts and torts, effectively broadening the avenues for legal choice; secondly, British international private law was the first to incorporate international civil jurisdiction and the recognition and enforcement of foreign judgments into the scope of international private law, breaking away from the traditional continental model. However, some scholars argue that British international private law has clear practical non-theoretical characteristics and exhibits formalism drawbacks.(2) United States: The Revolution in International Private Law1. Bill, Dissemination and Development of the Vested Rights Theory: Universalist international thought views international private law as having universal effectiveness. He also conducted in-depth analysis and research on Dicey’s vested rights theory and combined it with Huber’s theory of international courtesy.· Supplement: Bill served as the reporter for the “First Restatement of Conflict of Laws,” and he implemented his viewpoints therein, but it is evident that he overemphasizes general principles of conflict, neglecting actual theoretical situations, which can easily lead to rigidity and contradicts the tradition of American case law.2. Cook, “Local Law Theory”: Argues that the rights recognized and enforced by domestic courts are only those created by their own laws, Reference: a local right. The local law theory critiques the vested rights theory. Cook’s advocated methodology (by examining how courts actually handle legal conflicts and then summarizing or extracting applicable legal regulations) opens up a pragmatic path for studying international private law.3. Kephus, “Theory of Justice”: Argues that the outcomes of legal application should adhere to two standards: one is fairness to the parties, and the other is alignment with certain social purposes; therefore, he suggests that courts should examine legal relationships and analyze case facts before deciding on the applicable law; compare the potential outcomes of applying different laws; and assess whether it is fair to the parties and whether it aligns with public policy. He proposed seven priority selection principles for resolving legal conflict cases in his “Legal Choice Procedure,” refining his theoretical system.4. Curry, “Government Interest Analysis Theory”: Argues that the substantive law of each country reflects certain purposes or policies, and that in the process of achieving its legal purposes or policies, the state naturally derives a certain interest. The government interest theory is analyzing policies through law, deriving interests from policy analysis. He also advocates that government interest should be the sole standard for applicable law.· Supplement: Like Kephus, Curry believes that there are both real conflicts and false conflicts in law.It is noteworthy that Curry’s theory may expand the application of the law of the court’s location—courts may believe that the state has an interest in applying its own law in the case, thus using the law of the court’s location.5. Allen Zweig, “Court Location Law Priority Theory”: Argues that the resolution of legal conflicts is an interpretative issue of the substantive law of the court’s location, which can determine the applicable law through the interpretation results of the substantive law of the court’s location. In other words, the foundation on which international private law is established and developed is the priority application of the law of the court’s location, with the application of foreign law being an exception.6. Reese, “Most Significant Relationship Theory”: Served as the reporter for the “Second Restatement of Conflict of Laws,” proposing the Most Significant Relationship Theory based on the transformation of the traditional conflict law system. Specifically:(1) Revises the theoretical foundation of the “First Restatement” by replacing the vested rights theory with the most significant relationship principle (Article 6);(2) Abandons rigid rules, replacing them with flexible connecting factors instead of a fixed single connecting formula.In summary, the development of international private law theories in the United States during this period has also been influenced by Dicey and his vested rights theory (as seen in Bill’s many inheritances), but contemporary conflict law theory has formed on the basis of criticism of the “First Restatement of Conflict of Laws” edited by Bill, resulting in a rich variety of theories and viewpoints.3. The Prosperity of International Private Law Doctrines in ChinaThe first two parts mainly outline the developmental characteristics of international private law doctrines in China at different historical stages, listing various works, translation situations, reference materials, and case compilations and analyses, which will not be detailed here.The third part discusses the development trend of international private law in China during the era of peaceful rise, which involves a lot of content that can be expanded upon, and needs to be reorganized in conjunction with the latest developments, to be addressed in tomorrow’s paper reading session.