Party Autonomy In Private International Law

The principle of party autonomy is both ancient and new. On the one hand, this principle has a long history and dates back to ancient Greece and Roma. Dumoulin created the theory of party autonomy on the basis of former theories in 16^th century. In 19^th century it is used definitely as the primary principle of the applicable law of contract both in legislation and practice. On the other hand, with the enriching meaning and extending extension, this principle plays an important role in contemporary times. On the basis of research of native and foreign scholars, this thesis uses the historical and comparative research methods with solid evidence and makes a full discussion from theory, legislation to practice; also, with the view of dialectic philosophy and the principles of ideal and realistic jurisprudence, it analyses the essence of the principle of party autonomy(antinomy entia between freedom and limitation ), argues the actuality of it, and makes prediction on its future. This article contains four sections(nine chapters). It focuses on the following issues and seeks to some breakthrough: 1. Put party autonomy on the new starting point, that is, the principle of party autonomy is the entia of freedom and limitation. Probing into the essence of it and analyzing the relationship among other rules and mechanism, this article figures out the position and functions of party autonomy in private international law. 2. The principle of party autonomy has become the primary principle in determination of the applicable law of contract generally accepted in all the nations. According to the traditional theory of private international law, the applicable law is only national law. However, in recent years, some new problems have come out in determination of the applicable law of the contract in accordance with the principle of party autonomy, such as application of public law in the litigation process and selectivity of international customs and usages. 3. The rule of party autonomy even spreads out to other fields of applicable law, such as torts, property rights, marriage and legitimacy and family laws, and the law of procedure like arbitration and litigation. The conditions, characteristics and limitation of theapplication of the principle are also discussed in this thesis. 4. Problems of the principle in the judicial practice in our country and its solutions.There are five chapters and one brief summary in the section of introduction, which probes into the theoretic problems of party autonomy in private international law, analyses its essence and evaluates its functions.Basing on the definition of party autonomy in private international law, the first chapter analyses its development, the establishment and its background in society, politics and economy, which reaches the conclusion that party autonomy in private international law is the synthesis composed by theory, principle and rule and its essence should be the entia of freedom and limitation; furthermore, the extension of it carries out with the discussion of delimitation of freedom and limitation.The second chapter mainly discusses mutual influence between party autonomy in private international law and application mechanism of rules of conflict. In the process of applying rule of conflict to determination of the applicable law, the basic legal problems are frequently encountered, such as recognition, renvoi, public order, evasion of law and proof of foreign law. But party autonomy in the international private law is expressed via the rule of conflict, defined as "The parties may freely choose the applicable law governing their legal relationship." In doing so, it must influent and interact with other application mechanisms of the rule of conflict. These mechanisms may restrict or exclude the application of party autonomy. In turn, the principle of party autonomy also can affect the application scope and degree of those mechanisms.The third chapter puts emphasis on the influence on party autonomy posed by mandatory rules of countries whose court as the forum, whose law as the applicable law and with which it is most closely connected on the basis of comparison of mandatory rules and public order. The mandatory rules are the rules that dominate the behavior of parties and are independent on parties. With the application of law, they are the rules that must be applied no matter whether the parties have chosen or not. The relationship between the mandatory rules and public order is just the relationship between principle and regulation. Meanwhile, they have the same functions in the limitation of party autonomy, but differences in the operation mechanism, that is tosay, the public order refuses the granted applied applicable law directly, which means an indirect denial for party autonomy; and the mandatory rules are the opposite. The direct application of the mandatory rules of countries whose court as the forum makes the court excludes the principle of party autonomy. The mandatory rules in the applicable law should be applied as a part of the applicable law, but the application of mandatory rules of public law should depend on the circumstances. The limitation on party autonomy in the mandatory rules in the third country is not absolute. The courts in different countries hold the different opinions.The fourth chapter analyses the possibility and requirement of choosing public law as the applicable law after the demonstration of division and penetration of public law and private law. This article argues that some regulations regulate the "purely private" legal relationship with the methods of public law because of the penetration of public law and private law and the presence of mixing zone between public law and private law. And those acts protect both private interests and public interests. From the point of view, the public law can be chosen. The requirements of choosing public law are two kinds: internal and external. The internal requirement is the special character of public law: it is public law from the formality, but its objective is to change and influence the private relationship. The external requirement is that the application of public law can not violates the public order of countries whose court as the forum and damages the interests of the third country.The fifth chapter probe into the relationship between party autonomy and international uniform law .First it defines the concept of treaty in international private law, then discusses the influence on the establishment and generalization imposed by international treaties from three aspects, that is uniform of international substantive law, uniform of international law of conflict and uniform of international law of procedure. The international treaties also extend the applicable range of party autonomy. What is more, the principle of party autonomy enlarges the applicable range of international treaties as well. There are two aspects: 1. the principle of party autonomy extend the applicable range to non-concluding countries; 2. the principle of party autonomy extends the applicable range of convention, that is, the convention prescribes the application of itself under the condition that the law of some concludingcountry should be applied according to the principle of party autonomy.Second it talks about characters and merits of international customs and usages. Furthermore, it argues whether or not the parties may choose the international customs and usages as the applicable law in the international civil or commercial actions and the requirements of it, as well as its developing trend. This article holds that the international usages is not law, of no force effect, even if obtain the force effect through direct and indirect approaches. The international usages are not contained in the internal legal systems consequently, unless the internal law directly contains the international usages, such as Spain and Iraq. According to the traditional theory of private international law, the international usages can not be as applicable law. However, everything is developing and with the development of private international law theory and the perfection of international usages, there is some feasibility that the parties choose international usages as applicable law, although the requirements of it are insufficient. In the process of this tendency, we should focus on the interfering range of internal law as the parties choose the international usages, not the issue that whether the international usages can be choose or not.The brief summary get a conclusion of the functions of party autonomy: the balance point between stiff regulations and flexible methods guided by policy.The section of application of law contains two chapters and one brief summary, mostly discusses problems related with specific application of the principle of party autonomy in different areas of international private law, analyses the characters of applications in different areas, gives comments on the mechanism with which the principle of party autonomy brought into play.On the basis of discussing the common problems of the application of party autonomy, the sixth chapter focuses on the following: 1. criteria judging implied choice and the principle of the most significant relationship. This thesis argues that the main difference between implied choice and the principle of the most significant relationship is the former is subjective methods of choosing law and the latter is objective methods of choosing law. So the implied choice emphasize the subjectivity of party, all kinds of factors showing the idea of party; but the principle of the most significant relationship do emphasize the objectivity and the court's understanding allfactors, possibly containing the court's free judgment. 2. depegage and Splitting of the contract, compound choice. Depegage argues that different problems should be applied different laws, rather than dominated by one regulation , because the contract relationship is more complicated than other civil relationships and includes more problems, depegage emphasizes the different aspects of one contract. Splitting of the contract holds that the mutual-duty contract should be dominated by two kinds of laws when the parties perform the contract in their each country. Compound applicable law is that different rules should be chosen according to different but related contracts when the parties sign a series of contracts. 3. The variation of it in some special contracts.The seventh chapter discusses the possibility, conditions and limitations on application of the principle of party autonomy to torts, property rights, and marriage. The reasons why the principle of party autonomy can be applied in the field of torts are the limitation of the doctrine of [ex loci delicti and the needs of protecting the party's legal interests. The merits are the restrictions on the range of choice , the choice in the procedure of litigation, the choice of victim and so on. In the field of the property right, the internal relationship between the property right and creditor's rights makes some feasibility for the party choosing law. The restrictions on the party choosing law in the field of the property right are several legal relationships, such as the acquirement or lose of personal property, assurance and trust of personal property. In the field of marriage there are the system of spouse property, divorce and support and the "legal announcement" in testament inheritance in the field of inheritance.The brief summary summarizes the relationship between the principle of party autonomy and other principles of law application. The principle of party autonomy is the primary principle in the field of contract, but assistant in other fields.The section of procedure contains one chapter and one brief summary, and mainly states the different characters of party autonomy in the litigation and arbitration and analyses the real problems worth of notice.The eighth chapter first demonstrates that the principle of party autonomy is one pillar of the arbitrational system. It is demonstrated in three aspects: the application of law to arbitration agreement, choice of the law of arbitral procedure and substantivelaw in arbitration. The merits of it can be concluded as three points as follow: double autonomy, the choice of non-native law and then broaden the scope of reasonable connection. While in international litigation, it show in the way of forum shopping by agreement, but it has some limitations, such as the nature of the disputes, reasonable connection with the territory, convenient forum or not, the protection of legal interests of the parties. Furthermore, it discusses the latest development of agreement jurisdiction.The brief summary sums up the challenges to state sovereignty raised by the principle of party autonomy in the field of procedure.The chapter in the part of China contains one chapter and one brief summary, and states the application of the principle of party autonomy in the legislation and judicial practice in our country, gives analysis and comments on the problems and the reasons. Moreover, the solutions for those problems are brought forth on the foundation of the former research.The ninth chapter mainly discusses the past and the present of party autonomy in China. On the basis of summarizing the historical development, some problems about the application of party autonomy in China, such as the requirement of the application; the application in the fields of contract, the right in rem, torts, marriages, and inheritance and the problems raised; the application in conflict law of interregional.The brief summary holds that with the advantages of party autonomy, the principle of party autonomy will play the more important role in the future.