On The Status Of Maritime International Practice In China And France

Marine international practice itself is a complex concept,which based on different perspectives and research purposes may make different definitions.To study the status of the marine international practice from domestic legislation and judicial perspectives,it should make its broad interpretation to ensure that the practice that play certain role in practice will obtain the domestic legislation and judicial attention. In the international maritime areas,there exists both the sustantive and conflict international practice concerning the transnational civil and commercial relations between the maritime-related entities,as well as international practice relating to the procedures about the dealing of transnational marine commercial disputes.The evolution of international practice,because of the participation of sovereign countries,as well as the international organizations and non-governmental organizations aiming at promoting international maritime law,shows different characteristics in different stages.China played different role in the maritime international practice in its different stage.Marine international practice of course is not legally binding,its legal effect dependents on the achievement of the recognition of domestic legislation or judicial of its de facto binding.Foreign legislation and judicial commonly used direct or indirect way in recognizing the international marine practice.Theory in modern International Commercial Arbitration of the relations between modern law merchant and domestic law provides alternative modes in recognizing marine international practice, including automatic application,as well as,autonomous and complementary application.From China's situation in reality,there are both realistic necessity and some problems for domestic legislation and judicial to recognize maritime international practice.Therefore,the choice of mode and manner and the extent to which the marine international practice should be recognized must be integrated with the reality of China.The status quo of China's domestic legislative and judicial recognition of marine international practice can be demonstrated through three levels:First,on the overall performance,degree of acceptance of the marine international practice is high,and the existing maritime legislation and related judicial interpretations,both largely transplant or refer to a marine international practice,and judicial practice in the maritime also respect international practice;Second, from the point of the legislative technology,China's marine legislation basically recognize international norms by both direct and indirect channels,direct methods more prominent,while the status of the international practice indirectly recognized is still uncertain.But legislation depending too much on bringing the international practice into domestic law led to the rigidity of legislation,and "may apply international practice" not only destroy the legal stability,but also differ from the style of "CMC" that different adjustments are applied in different areas;Third,from a practical effect,some practices being brought into "CMC" are inconsistent with the domestice requirement,or lack of co-ordination between each other,or some improper assorbtion leads to operational difficulties.Fuzzy of "may apply international practices",as well as the missing of relevant provisions on standards and identification methods,lead to confusion in judicial practice,which not only represent with a strong authorative color,but also inconsistent understanding of the status of international practice to legal provisions,and the legal nature of the international practice applied is often not clear.The above defficiency of China's domestic law in determining the status of the marine international roots in both the specific background and technical aspects of the legislation.On amending the existing maritime legislation,the appropriate manner and mode should be adopted in accordance with the realities of China's changes:First,the basic ideas that can be followed includs:to base on the local demand,to serve for domestic shipping economic development;to apply the principle of distinction,adopt different approach in the recognition of marine international practice according to its different standard and different area therein.In the process of recognizing international practice,to take into account the certainty and flexibility,in achieving as far as possible the certainty in determining the contents of the marine international practice,taking account of the the possibility of further development of marine international practice.Secondly,on the choice of means of recognition,it should be prudent in bringing international practice into domestic law.It can be properly considered in any discretionary area to incorporate some written international practice into domestic law as a whole,and in accordance with the latter's development and changes at any time version of included, in order to achieve the stability and flexibility of legislation.At the same time,it should try to avoid using general and vague way to recognize directly marine international practice as source of law,but should strengthen the use of indirect way of recognition,in order to not only avoid the legislative uncertainty,but also achieve attention to a greater scope of the marine international practice.Thirdly,in the specific application of the pattern,there is no theoretically barriers for the legislature to clearly recognize the parties may choose international practice as the applicable law,which is also in line with the reality of China.However,it should still depend on whether the parties choose international practice as the law applicable. While the parties to contract does not clearly choose international practice,the marine international practice can be explained as a supplementary tool for the contract,or as contracts implied terms. However,it isnecessary for "CMC" to clearly define status of maritime practices in the supplementing contract according to different characteristics of the marine contract.In addition,both substantive or conflict,as well as procedural marine international practice,should be explained as a supplementary tool for loopholes in the law,legislation should make it clear that "under no circumstances,should be in accordance with international practice."Finally,the objective criteria and subjective criteria can be applied to identify marine international practices,as well as the formal or virtual standards,and according to status of international practice in domestic law,different focus should be given.