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【期刊名称】 《武大国际法评论》
Some Thoughts on the Characteristic Performance Test
【英文标题】 Some Thoughts on the Characteristic Performance Test
【作者】 LU Song TANG Yi【作者单位】 China Foreign Affairs University
【分类】 国际经济法
【英文关键词】 characteristic performance;closet connection doctrine;privateinternational law
【期刊年份】 2009年【期号】 1
【页码】 209
【英文摘要】

As an approach to the interpretation of the closest connection doctrineused for years in the European continent for the choice of the law appliable to contractualrelations as well as non-contractual ones,the characteristic performance test evolves withthe development of international economic and trade activities. Despite criticisms on thisapproach as embodied in the Rome Convention,the Rome I Regulation retains it. Thisarticle will focus on the development of the characteristic performance theory and try toexplain that this theory,as one of the interpretations and solutions to the closest connectiondoctrine universally accepted nowadays,has its strengths and weaknesses.

【全文】法宝引证码CLI.A.1137840    
  1. Introduction
  On the issue of the law applicable to contractual obligations, the principle of partyautonomy-the application to their contract of the substantive law effectively chosen by theparties-has been universally and firmly adopted nowadays. Absent such a choice,therehas been a world wide tendency in theory and practice for the past half century thatsupports the application of the law of the country which is most closely connected to thecontract, which is called the doctrine of closest connection[1] or the closest and most realconnection[2] orte most significant relationship.[3]
  How to determine the law of the country with which a particular contract is mostclosely related is a question generating divergent answers and practical solutions. In theEuropean Communities(hereinafter“EC”),the so-called“characteristic performance”theory has been employed to provide a partial interpretation of the doctrine of closestconnection. The EC Convention on the Law Applicable to Contractual Obligations of 19June 1980(“Rome Convention”)[4]was the first international treaty of far-reachinginfluence that incorporated the concept of characteristic performance[5] which served asguidance in identifying the country most closely related to a contract. The recentdevelopment of the characteristic performance theory is Regulation(EC) No 593/2008 ofthe European Parliament and of the Council of 17 June 2008 on the law applicable tocontractual obligations(hereinafter“Rome I Regulation”).[6]
  Doubts about the characteristic performance test focus on the question whether it isthe most accurate way to determine the law of the country most closely connected to acontract. This article will examine the development of the characteristic performancetheory and attempts to explain that this theory,as one of the interpretations and solutionsto the closest connection principle widely accepted nowadays by most countries in theworld,has its strengths and weaknesses.
  II. The Concept of Characteristic Performance
  Originating in Switzerland,[7]the concept of“characteristic performance”lacks acertain definition up to now.[8]It is because of the Rome Convention that this conceptattracted more attention from outside the Europe. However, the Rome Convention alsofailed to furnish a definition of the characteristic performance but merely provides inArticle 4 (2):
  “Subject to the provisions of paragraph 5 of this Article,it shall be presumed thatthe contract is most closely connected with the country where the party who is to effectthe performance which is characteristic of the contract has,at the time of conclusion ofthe contract, his habitual residence,or, in the case of a body corporate orunincorporated, its central administration.”
  The provision introduces the notion that in a bilateral contract, there usually is one whichis characteristic of the contract and one which is not. It is the characteristic performance ofa contract that will be the key factor for the determination of the law applicable to thatcontract. An inevitable question that will follow would be:how the characteristicperformance in a particular contract will be determined?
  The answer is to be found in the official Report prepared by Professor Mario Giulianoand Professor Paul Lagarde on Rome Convention(hereinafter“Giuliano/LagardeReport”).[9]It is stated that:
  “Identifying the characteristic performance of a contract obviously presents nodifficulty in the case of unilateral contracts. By contrast, in bilateral(reciprocal)contracts wherebthe parties undertake mutual reciprocal performance,the counter-performance by one of the parties in a modern economy usually takes the form ofmoney. This is not, of course, the characteristic performance of the contract. It is theperformance for which the payment is due,t. e. depending on the type of contract,thedelivery of goods,the granting of the right to make use of an item of property, theprovision of a service,transport, insurance,banking operations,security, etc.,whichusually constitutes the centre of gravity and the socio-economic function of thecontractual transaction.”[10]
  It can be seen from the above illustration that non-monetary performance is preferred indetermining the characteristic performance. The report considers that the performance forwhich the payment is due usually constitutes the center of gravity and the socio-economicfunction of a contractual transaction.
  The report also stated that:
  “It is possible to relate the concept of characteristic performance to an even moregeneral idea,namely the idea that his performance refers to the function which thelegal relationship involved fulfils in the economic and social life of any country. Theconcept of characteristic performance essentially links the contract to the social andeconomic environment of which it will form a part.”[11]
  This interpretation advances the theory of characteristic performance and tries to broadenits basis beyond the legal analysis into the social and economic function of contracts. Withthe legal, social and economic values in hand,the theory of characteristic performanceenjoys a solid foundation in the eyes of EC.
  III. History of Characteristic Performance Theory
  The theoretic foundation of characteristic performance,in the view of the authors,can be traced back to thoughts of the great German jurist Savigny who did extensiveresearch on Roman law and proclaimed that every legal relation belongs to or is subject toa legal territory(and the legal territory is where the legal relation has its seat).[12]Hisline of thoughts inspired the later development of conflict rules,including the nowuniversally accepted closest connection principle. As he stated,a legal principle wassought for to deduce the subordination of the individual to a particular local law andconsequently the relation of the person to a particular territory.[13]His“seat” theory isregarded as territory-orientated and jurisdiction-selective[14](while the American conflict-of-laws theories of 20th century are more issue-oriented,and tend to be result-selective ).[15]Savigny tried to tell us that there should be a proper geographical location(seat) for any legal relation. For instance,with respect to a contract concluded by theparties,the law effective in that location should govern that contractual legal relation. Itmay not be totally inappropriate to regard the closest connection principle andcharacteristic performance theory as a revival of the Savigny's idea in EC countries.
  Schnitzer settled the concept of characteristic performance in theory for the firsttime.[16]According to him,there is only one characteristic performance for each contract,and therefore only one connecting factor corresponds to each contract.[17]However, rules ofconflict of laws varied in a number of EC countries prior to the adoption of the RomeConvention. For instance,in France and Belgium,applicable law in the absence ofparties' choice should be the law of the place of performance. German law admits theprinciple that obligations arising out of a contract are severable provided that they are to beperformed in different countries,and each obligation should be governed by the law of therespective place of performance. In Italy,the legislature expressly and directly laid outrules failing an express choice of law by the parties.[18]In England,it was presumed thatno one factor was decisive to find out the country which has the“closest and most realconnection” to a contract. Therefore,following precedents,judges assess each caseconsidering a compilation of factors.[19]
  The Rome Convention was the first international treaty where characteristicperformance concept was mentioned. As described above,the concept was explained inthe Giuliano/Lagarde Report. It was a compromise between EC countries and it departedfrom Schnitzer's original thoughts since depecage was admitted by the Rome Convention, [20]while according to Schnitzer there is only one connecting factor for each contract. In theRome Convention,presumptions of the closest connection for certain types of contract andthe jurisdictions are provided in Article 4. These presumptions are rebuttable,since they“can be disregarded if it appears from the circumstances as a whole that the contract ismore closely connected with another country”.[21]The provisions show that thecharacteristic performance test, as an interpretation of the closest connection principle,furnishes only a partial solution under the Rome Convention, which however gives judgesmore room of discretion than the Rome I Regulation does.
  Rome I Regulation has inherited the closest connection principle and characteristicperformance test of the Rome Convention. Nevertheless,Rome I Regulation is not asimple repetition of the Rome Convention regarding default rules applicable to a contract inthe absence of a choice by the parties. Rther, it streamlined the process of identifying thecountry most closely connected with the contracts by expressly listing, in the firstparagraph of Article 4,eight types of contract including sales and service contracts,contracts relating to immovable property, franchise and distribution contracts, etc.,aswell as the presumed country whose law shall govern these contracts. Only in the secondparagraph of Article 4 is characteristic performance test being mentioned as follows:
  “Where the contract is not coveredbparagraph 1 or where the elements of thecontract would be covered by more than one of points(a) to(h) of paragraph 1,thecontract shall be governedbthe law of the country where the party required to effect thecharacteristic performance of the contract has his habitual residence.”
  Undoubtedly, when formulating the presumed country whose law shall govern each of theeight categories of contract enumerated in paragraph 1 of Article 4 of the Rome IRegulation,the characteristic performance test, as an interpretation of the closestconnection doctrine,has been taken into account, particularly in(a) contracts for sales ofgoods,and(b) contracts for provision of service. Some images of this test can also bediscerned in Article 7. However, the authors believe that one should not view thecharacteristic performance approach as an alternative to the closest connection theory,ortake them as parallels. The general principle adopted by either Rome Convention or RomeI Regulation,in the absence of parties' choice of the applicable law, is the principle ofclosest connection. Characteristic performance approach only furnishes a  partialinterpretation to the principle of closest connection in respect of conflict rules in case of thelaw of contractual obligations.[23]And even the closest connection theory does not provide acomplete solution in the absence of a parties' choice to conflict rules regarding law ofcontractual obligations.[23]
  The significance of characteristic performance test as a flexible rule seems to bereduced and the room for discretion is conspicuously limited under Rome I Regulation forthe European judges to determine the law applicable to a contract in the absence of achoice by the parties. This change reflects a tendency,which is also apparent in China aswill be discussed below,to analyze various contracts in the legislative phase and stipulate,in the form of statute or other rules that judges cannot disregard,their presumedconnecting factors, which enhances predictability and certainty while alleviating theburden of judges in identifying the country with which the contract in a particular case hasthe closest connection.
  IV. Comments on Characteristic Performance TheoryA. General comments光宗耀祖支撑着我去教室
  Criticisms on the characteristic performance test as represented by the RomeConvention are more frequently heard than praises. Some believed that the test provides acomplicated solution and while the characteristic performance presumptions may providesome certainty and work well in routine commercial transactions,it is less satisfactory incomplex governmental contracts and it is not widely accepted outside EU.[24]
  As an international convention which may be phased out, the Rome Convention usedto be criticized for its complication of applying the characteristic performance. Thepresumed characteristic performance triggers criticisms since the law of the place where theseller or the service pr

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【注释】

[1]See for instance, Article 126 of Contract Law of the People's Republic of China 1999,whichprovides“…Where parties to the foreign related contract failed to select the applicable law, the contractshall be governed by the law of the country with the closest connection thereto'.

[2]David McClean (ed.),J. H. C. Morris, The Conflict of Laws, 5th ed.,Sweet&Maxwell Ltd,London, 2000, p. 323.

[3]Restatement of the Law(Second) Conflict of Laws, sec. 188(1971).

[4]Official Journal of the European Communities C 027, 26/01/1998 pp. 34-46.

[5]Article 4 (2) of Rome Convention.

[6]Official Journal of European , L 177/6.

[7]Vischer, Internationales Vertragsrecht, Bern, 1962,pp. 89-144;H. U. J. D'liveira,Characteristic Obligation in the Draft-EEC Obligation Convention, American Journal of Comparative Law,Vol. 25,1977,p. 393.

[8]Peter Machin North, Essays in Private International Law, Oxford University Press, 1993,p. 41.

[9]Official Journal of the European Communities C 282 31/10/1980, pp. 1-50.

[10]Official Journal of the European Communities C 282 31/10/1980, pp. 1-50.

[11]Official Journal of the European Communities C 282 31/10/1980,pp. 1-50.

[12]William Guthrie(trans.),Friedrich Carl Von Savigny, A Treaties on the Conflict of Law andthe Limits of Their Operation in Respect of Place and Time, Stevens&Sons, 1849, Section 360, p. 133.

[13]Ibid.

[14]David F. Cavers invented the term “jurisdiction-selection” to describe the traditional approachof conflict of laws. See David F. Cavers, A Critique of the Choice-of-Law Problem, Harvard LawReview, Vol. 47,No. 2,1933,pp. 173-208.

[15]Academie De Droit International de la Haye, Recueil Des Cours, Collected Courses of theHague Academy of International Law, 1991-I, by Martinus Nijhoff Publishers, 1992,p. 299.

[16]A. F. Schnitzer, Handbuch Des Internationalen Privatrechts, Basel, 1944,p. 645.

[17]Ibid.

[18]Mario Giuliano and PaulLagarde, Report on the Convention on the Law Applicable toContractual Obligations, Comments on Article 4,Official Journal of the European Communities C 282 31/10/1980, pp. 1-0.

[19]Mount Albert Borough Council v. Australian Temperance and General Mutual Life AssuranceSociety,[1938] A.C. 224.

[20]Art 4(1)of the Rome Convention stipulates that a severable part of the contract which hasacloser connection with another country may by way of exception be governed by the law of that othercountry.

[21]Article 4 (5)of the Rome Convention.北大法宝

[22]This conclusion can be drawn from paragraph 3,4 and 5 of Article 4 of Rome Convention, andfrom Article 4(1)(c),(d),(g)(h) and Article 4 (3) and (4) and Article 5 of Rome I Regulation.

[23For instance, some other considerations prevail in the conflict rules for consumer contracts andindividual employment contracts.

[24]R. D. Bishop, J. Crawford, and W. M. Reisman, Foreign Investment Disputes, Kluwer LawInternational, 2005,p. 629.

[25]F K Juenger. The EEC Convention on the Law Applicable to Contractual Obligations: AnAmerican Assessment, in P M North(ed.),Contract Conflicts: The EEC Convention on the LawApplicable to Contractual Obligations : A Comparative Study, North-Holland, 1980,p. 301.

[26]J. H. C. Morris and P. M. North,Cases and Materials on Private International Law,Butterworths, 1984,p. 466.

[27]Giesela Ruhl, Methods and Approaches in Choice of Law: An Economic Perspective, BerkeleyJournal of International Law, Vol. 24, 2006,pp. 801-841.

[28]See Lawrence Collins, Essays in International Litigation and the Conflict of Laws, OxfordUniversity Press, 1996.n. 423.

[29]Official Journal of the European Communities, C 282/1,31/10/1980, p.20.

[30]Article 19 of Rome I Regulation.

[31]Article 19 of Rome I Regulation.

[32]Max Planck Institute for Comparative and International Private Law, Comments on the EuropeanCommission's Proposal for a Regulation of the European Parliament and the Council on the Law Applicableto Contractual Obligations(Rome I),available at: www. mpi. priv. de/shared/data/pdf/comments_romel_proposal. pdf, last visited 18 October 2008.

[33]Ibid.

[34]Article 4 (5) of the Rome Convention.

[35]Article 4 (4) Rome I Regulation.

[36]E. g.,Article 145 of the 1986 General Principles of Civil Law and Article 126 of the 1999Contract Law.

[37]It is a unique feature of judicial interpretation in China that the Supreme People's Court mainlyexercises that power through issuance of abstract but detailed written rules like these Provisions, ratherthan through judgments.

[38]See The 1987 Interpretation of the Supreme People's Court on Several Issues about theApplication of Law of the People's Republic of China on Economic Contracts Involving Foreign Interest.

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