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Research On The Development Trends On The Law Applicable To International Contracts

Posted on:2012-11-19Degree:DoctorType:Dissertation
Country:ChinaCandidate:F Q LiFull Text:PDF
GTID:1226330371453460Subject:International law
Abstract/Summary:PDF Full Text Request
“International Contracts”in international private law refers to the contract which involves legislative jurisdiction and different choices of law between different countries because of the trans-frontier element. The international contracts mentioned in this paper are referred to the international civil or commercial contracts which do not include contracts concerning marriage, guardianship, heritage, customs, taxes or administrative affairs.The application of law system to international contracts has experienced a long and complicated evolution process. Affected by the Italian Statute Theory in the 13th century, the law applicable to international contracts is mainly dominated by the lex loci contracts. In the 16th century, the theory of party autonomy was proposed by Charles Dumoulin. In the 19th century, the principle of party autonomy became the main stream after repetitive practice of legislation and judicature in many countries, and then influenced by British choice of law theory, a new phase called“proper law of a contract”came. In this new phase, the principle of party autonomy was still the dominant stream but was assisted by the doctrine of most significant relationship. So, this theory experienced several hundred years of development. Now, it has developed into the first principle to deal with the applicable law to international contracts and the doctrine of most significant relationship is an important supplement. Although there are similarities between the principle of party autonomy and Charles Dumoulin’opinions, essential differences still exist and even expand with the development of society. Because the law applicable to international contracts is complicated, the development trend of the law applicable to international contracts is based on the principle of party autonomy. Considering the representativeness of conflict of law in Europe and America, this paper cites the practice of legislation and jurisdiction as the comparison object. This paper, on the basis of researches by abroad and domestic scholars, analyzes the common trend of the principle of party autonomy and the doctrine of most significant relationship in Europe and America by use of historical research method and comparative research method. This paper also analyzes the reason for the convergence of the application of law to international contracts from the philosophic perspective (justice) and economics perspective (efficiency) so as to estimate the future trend more definitely.This paper is divided into seven sections. Based on the principle of party autonomy and the doctrine of most significant relationship, this paper makes a comparative analysis of the law applicable to international contracts, and summers up the common development trend and analyzes the reason for convergence. The practice of legislation and jurisdiction in our country is evaluated here and improving advices are proposed on the basis of the international trend in this paper.In the first section, the developing history of the law applicable to international contracts is introduced. From the principle of locus regit actum proposed in the Statute Theory times to the principle of party autonomy by Charles Dumoulin to proper law of a contract, we can conclude that after long time of development, the application of law system to international contracts has already totally discarded the traditional territorial conflict rules and adopted flexible conflict rules. That is to say the principle of party autonomy has become the first principle for countries to deal with the law applicable to international contracts, and the doctrine of most significant relationship has become the supplementary rule to the principle of party autonomy. In the second section, the unification process of the law applicable to international contracts is analyzed. This section mainly introduces the unification of the law applicable to contract in EU, the unification of the law applicable to contract in inter-America, and achievements made by Hague Conference on Private International Law in terms of the undergoing application of law system of international contracts. From the regional conventions introduced in this paper and the unification process mentioned above, we can see that the application of law system of international contract has already transformed from regional unification to global unification, which indicates that convergence trend is much more obvious.In the third section, the situation of the principle of party autonomy expanding in the common contract area is analyzed and the reason why it is assimilated is also analyzed. The international society is gradually relaxing the accreditation criteria of“international contract”, allowing domestic contracts to choose foreign rules, relaxing the way for concerned parties to choose law, allowing concerned parties to choose the proper law through“expressing”or“implying”, relaxing the time limit to concerned parties in terms of choosing law, and generally abandoning the request of“substantive relation”. In the past, the parties concerned can not choose“non-state law”, but the situation changes now. Another thing that needs attention is that many countries think that this kind of trend is not occasional, and the reason can be explained from the perspectives of justice value and efficiency value of the conflict law. The principle of party autonomy can realize the conflict justice and substantive justice goals perused by the conflict rules and fulfill the requests of parties concerned to the largest extent, therefore, if the law chosen by parties concerned does not violate public interest and other people’interest, it will not be limited or forbidden. Similarly, the principle of party autonomy can realize the conflict efficiency and substance efficiency of the conflict rules. The externality theory of economics can provide evidence for party autonomy. In the fourth section, the limits to party autonomy in the special contract area in Europe and America are analyzed here. In EU, the law chosen by parties concerned in the consumer contract must not deprive the consumer of the protection afforded to him by the mandatory rules of the law of the country in which he has habitual residences. The law chosen by parties concerned in the employment contract must not deprive the employee of the protection afforded to him by the mandatory rules of the law which would be applicable in the absence of a choice of law. The law chosen by parties concerned in the insurance contract is limited to a certain scope in order to protect the interest of the disadvantaged party. The American legislation does not pose any special limits to party autonomy in the consumer contract, employment contract and insurance contract. However, in juridical practice, the court protects the interest of the disadvantaged party through invalidating the choice-of-law clauses by use of public policy doctrine.The common trend of stronger limits to party autonomy in special contracts showed in the legislation and jurisdiction practice in Europe and America can be analyzed from the perspective of justice and efficiency. From the justice perspective, the interest of disadvantaged party will be protected to realize the substance justice of conflict rules. Therefore, the party autonomy should be limited to some extent to ensure the application of law in favor of the disadvantaged party. From the efficiency perspective, because of the possible information asymmetry existing in the party concerned of special contracts, opportunism actions may happen. At the same time, if the party autonomy is considered not having any economic efficiency, then it should be restricted in the form of laws so as to make the application of party autonomy achieve its efficiency goals.In the fifth section, on the basis of mandatory rules, this section puts emphasis on party autonomy posed by mandatory rules of countries whose court as the forum court, whose law as the applicable law. Mandatory rules are the rules that dominate the behavior of the parties and are independent of parties. At present, different countries will adopt different attitudes when it comes to foreign mandatory rules imposed on parties concerned. There are no mandatory rule terminology in American legislation, actually public policy doctrine are adopted to achieve the same goal. But we can still see that American legislation has already made great efforts to introduce in“mandatory rules”.In this section, restrictions imposed by public policies to party autonomy are also analyzed. Because of the uncertainty of public policies conception and scope, the trend of the practice of legislation and jurisdiction in many countries is that the public policy should be limited to maximize the party autonomy.We can also explain the common trend from the perspective of justice and efficiency. From the justice perspective, if the law chosen by parties concerned violates the national policies or public interest protected by legislation in one country, then the justice value of the conflict rules can not be realized and needs to be limited. From the efficiency perspective, negative externality brought about by the choice of law can be explained as the reasons for party autonomy restrictions.In the sixth section, as the important supplement of the principle of party autonomy, the doctrine of the most significant relationship is the research object of this paper. On the basis of analyzing the doctrine of the most significant relationship, this section analyzes the development trend of this theory, that is, to limit the discretion rights of judges, stiffen the doctrine of the most significant relationship to some extent, and highlight the ladder reform of choices so as to achieve unification of flexibility and stability of the application of law. As for this, we can analyze the reason from the perspective of justice and efficiency. From the justice perspective, restriction to the discretion rights of judges can ensure the realization of legitimate expectations so as to bring the justice value of conflict rules into full play. From the efficiency perspective, in order to prevent the low-efficient operation of the doctrine of the most significant relationship, countries should complete the determination of the place of most significant contacts in legislative stages, at least, they should impose restrictions to the discretion rights of judges so as to increase the benefit brought by certainty and predictability of the application of law.In the seventh section, the development trend of the application of law system to the international contract is concluded here. And on the basis of this conclusion, regulations and insufficiencies existing in the applicable law to contract in China’s legislation and judicial interpretation are analyzed. This section also analyzes judicial interpretation applied to contracts with a foreign element in 2007 and relevant regulations in“PRC Law on the Application of Law to Foreign-related Civil Relations”in 2010. Then, on the basis of the typical case of applicable law to foreign-related contracts in judicial practice, this section analyzes insufficiencies of the court in specifically applicable law to contract. At last, on the basis of the development trend on the application of law system to international contract, this section proposes relevant advices on national systems according to insufficiencies of the legislation and the jurisdiction practice.
Keywords/Search Tags:International Contracts, party autonomy, the doctrine of the most significant relationship, development trend, Justice, efficiency
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