国际私法英文阅读.doc

5.1 The incidental question A case involving private international law may place a subsidiary issue, as well as a main question, before the court. Once the relevant choice of law rule has been applied and the law to govern the main issue thereby determined, a further choice of law rule may be required to answer the subsidiary question affecting the main issue. An incidental question properly so-called presumes the existence of three facts. The main issue should be governed by a foreign law. There should be a subsidiary question involving a foreign element which could have arisen separately and which has its own independent choice of law rule. This choice of law rule should lead to a conclusion different from that which would have been reached had the law governing the main question been applied. Without these pre-requisites there is no incidental question, and in most of the cases where a true problem has arisen the court has not appreciated that a determination of the law to govern the incidental question is required. This is an issue on which the support of jurists may be found for a variety of solutions. Some support the law governing the main issue, others of the choice of law rules of the forum, and others consider that determination of the problem will depend on the nature of the individual case and the policy of the forum thereto. 5.2 Characterization The “characterization of the cause of action” means the allocation of the question raised by the factual situation before the court to its correct legal category. Its object is to determine relevant rule for the choice of law. The rule of any given system of law are arranged under different categories, some being concerned with status, others with succession, procedure, contract, tort and so on. The jurisdiction-selecting rules of the First Restatement required that each case be labeled in order to determine which choice of law rule applied. If the case were labeled a “contract” problem, then the law of the pla