不同法域实体法律的选择与适用是法官在处理包含外法域因素民商事案件的过程中必须解决的首要问题。这一过程不仅体现了涉外案件与纯内国案件的区别,而且在很大程度上决定了当事人实体权利在诉讼过程中的具体走向。而现阶段的司法实践状况表明:仍有相当多的准据法确定过程并未顾及这一问题,司法裁判缺乏对案件实体法适用合理性的阐释。如果进行进一步的考察,则不难发现在法律适用的技术角度,还隐藏着为表面合理所掩盖的规则缺失,即:对赋予法官最 The choice and application of law in different jurisdictions is the foremost issue that judges must solve in handling civil and commercial cases involving foreign jurisdictions. This process not only reflects the difference between foreign cases and purely domestic cases, but also to a large extent determines the specific direction of substantive rights of parties in litigation. Judicial practice at this stage shows that there are still quite a lot of basic law determination processes that do not take this issue into consideration and that judicial adjudication lacks an explanation of the application of the substantive law. If further investigation is carried out, it is not difficult to find that there is a lack of rules that are overshadowed by surface rationality in the perspective of the law applicable to law. That is,