Proper Status Of Sovereignty In Private International Law

Sovereignty in Private International Law(PIL) is a very complicated problem.Scholars of different countries and different times have different opinions about thestatus of sovereignty in PIL, which has arose tirade theory disputes. Sovereigntyproblem confused the theoretical research and judicial practice. For the continuousdevelopment of transnational civil communications in21century and the progress ofPIL, we need to re-examine the sovereignty problem in PIL again, and locate it in PILproperly.The specialty of sovereignty problems in PIL lies in two aspects. On the onehand, the control object of PIL is transnational civil relationships between privatesubjects, which is controlled by sovereignty countries. On the other hand, countrieshave regulative profit when they are controlling private relationships. Sovereigntycountries pursue power and interest by themselves. When this tendency enteredprivate relationships, sovereignty countries would deviate from it’s neutral positionand twist the outcomes of private case. This behavior will block up the smoothdevelopment of civil communication. So, the operation of sovereignty power must berestricted to some extent.This article is mainly about the proper status of sovereignty in PIL, involvingthree kinds of important authorities------adjudicative authority (jurisdiction),prescriptive authority (legislative jurisdiction) and enforcement authority (theauthority of recognize and enforcement foreign decisions). This article starts from thetheory dispute, and analysis the proper location of sovereignty in PIL. And then, this essay scratches the standards to decide the appropriateness of sovereignty in PIL. It isnecessary to consider the internal inquiry of PIL, which comprises the relationships ofdifferent sovereignties and the relationships of different private rights and therelationships of sovereignties and rights, the nature of PIL and the function of PIL. Itis necessary to consider the changes of the concept of sovereignty in five hundredyears, which involving the way we understand the concept of sovereignty. It isnecessary to consider the theories of international relationships, for the transnationalcivil relationship belongs to the expanding international relationships and the theoriesof international relationships can support our analyses.We discuss the proper position of sovereignty in PIL on these standards. And on thesebases, this article analyze the problem of jurisdiction, the application of law, therecognition and enforcement of foreign judgment.The first chapter of the dissertation introduced the relationship of sovereignty andthe change of the theories of PIL. The notion of supreme power of early timesprovoked the emerging of the sprout of PIL. The article introduced all kinds ofsovereignty authority oriented theories and private right oriented theories, of courseinvolving their defects.The second chapter to the fourth chapter of the dissertation introduced thestandards to decide the appropriateness of sovereignty in PIL.The second chapter analyses the three level relationships of PIL. The first levelis the relationship between the rights of different parties from different countries. Thesecond level is the relationships between the sovereignties of different countries. Thethird level is the relationships between private right and sovereignty. Above all, thefirst level is the main aspect. The second chapter also analyses the nature of PIL andthe function of PIL. The nature of PIL is mainly private, although it involves public law. The function of PIL is not the settlement of conflict of laws. It’s function shouldbe the determination of the rights and obligations of private parties. The third chapterintroduced the changes of the concept of sovereignty. At beginning, sovereignty is anabsolute power, and belongs to king. The concept only had internal aspect. The sourceof sovereignty power was thought from natural law or the wish of god. Asdevelopment with times, the concept of sovereignty has it’s external aspect, andbecomes a limited power when applied to relationships between countries. In acountry, the sovereignty power if limited by constitution. In transnational civilrelationships, in order to realize rule of law, sovereignty is limited byconstitutionalism. The fourth chapter introduced three kinds of opinions ofsovereignty from three kinds of international relationship theory. The most persuasiveis the neoliberalism international relationship theory. This theory argues that thecomplex interdependence need sovereignty countries to cooperate with each other andsovereignty countries cooperate with other actors.The fifth chapter of this dissertation is the presentation of proper sovereignty.This part involves the restrictions between the regulative authorities of differentcountries and the restrictions to the regulative authorities of countries from the privateright. The first part comprised of the upward transfer of regulative authorities and therestrictions exerted by themselves. The second part comprised of the upward transferof regulative authorities, the state immunity problem and the restriction of publicpolicy.The sixth chapter to the eighth chapter of the dissertation introduced theapplication of proper sovereignty in the field of jurisdiction, application of law,recognition and enforcement of foreign judgment.The sixth chapter is mainly about sovereignty and the application of law. The first part of this chapter is about the three methods of PIL-----unilateral approach,multilateral approach and the substantive law approach. The substantive law approachis the most proper method among three methods. The second part of this chapter isabout the basic paradigm of PIL. This article’s opinion is the proper paradigm shouldbe the main and secondary paradigm on private right and state authority. The thirdpart of this chapter is about the PIL standard. This article’s opinion is the properstandard of PIL should be the main and secondary standard. Right standard is themain. State standard (government standard) and international society standard areboth secondary. The fourth part of this chapter is about the value orientation of PIL.The value orientation of PIL should be in accordance with the multi methods of PIL.The seventh chapter is about the jurisdiction under the proper sovereignty in PIL.This chapter introduced the standard of the jurisdiction determination and the conflictof jurisdiction. The opinion is that the exorbitant jurisdiction should be restricted inorder to protect the reasonable interest of private parties. International conventions,such as Hague convention and Brussels convention, and other measures, such asforum non convenient and anti-suit injunction, can be used to restrict the exorbitantexpanding of sovereignty in the field of jurisdiction.The eighth chapter is about the recognition and enforcement of foreign judgment.This problem concerns interest of private parties and the interest of sovereigntycountry. The proper sovereignty in PIL needs the countries to protect the reasonableinterest of private parties and ensure the free flow of judgment in the world. This fieldis not the proper battleground of the contesting of power. Some conditions, such asreciprocal principle, should be abolished. Because they over emphasize sovereigntyinterest and harm the reasonable interest of private parties.In a word, proper status of sovereignty in PIL is an attempt to relocate the sovereignty in PIL system in the new century. Of course, there are lots of details to beexplored and completed. But explore the proper status of sovereignty will definitelyin favor of the determination of developing direction of PIL. Also, it is in favor of theforming of rule of law in the field of transnational civil communication.