9600 CONFLICT OF LAWS AND CHOICE OF LAW：9600法律与法律选择的冲突.pdf.pdfVIP

9600 CONFLICT OF LAWS AND CHOICE OF LAW Erin Ann O’Hara and Larry E. Ribstein George Mason University School of Law © Copyright 1999 Erin Ann O’Hara and Larry E. Ribstein Abstract We discuss the law and economics of conflict of laws and choice of law, focusing on the law in the US. We first consider choice of law when the parties have not effectively chosen their governing law by contract. We address four questions: (1) Why do courts ever apply anything other than the law of the forum? (2) If a court sometimes applies foreign law, is a rule-based or more modern standard-based approach to its choice preferable? (3) Why have so many states abandoned rule-based approaches in favor of standard-based ones? and (4) Is there any real practical difference between the First Restatement and modern approaches? We then discuss costs and benefits of enforcing parties’ contractual choice of law provisions. We conclude that permitting parties to choose the governing law that best fits their transactions and future private disputes can enhance jurisdictional competition and help restore predictability to the conflict of laws problem. JEL classification: K33 Keywords: Conflict of Laws, Choice of Law, Private International Law 1. Introduction When a legal dispute involves parties, property or events located in more than one government jurisdiction, and the substantive laws of those jurisdictions differ, whose substantive laws govern the rights and obligations of the parties? As barriers to migration and trade between jurisdictions fall, choice of law increasingly complicates transaction and litigation planning and provides new opportunities for private ordering. Until approximately forty years ago, all courts in the United States applied the territorial rules embodied in the First Restatement of Conflicts when they