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A Study On The Application Of Third Country Mandatory Rules In The Field Of Contract

Posted on:2015-03-19Degree:DoctorType:Dissertation
Country:ChinaCandidate:J X DongFull Text:PDF
GTID:1316330428475269Subject:International Law
Abstract/Summary:PDF Full Text Request
For a long time, the application of third country mandatory rules constitutes one of the most difficult issues in the field of conflict law. In terms of the traditional system of designation of the applicable law, third country mandatory rules, which do not belong to the lex causae or forum law, could not be applied. However, from a practical point of view, particularly in the field of contract, all countries tend to strengthen the regulation of economic and social lives, such as anti-trust laws, import and export regulation or exchange control, etc. The application of such regulatory legislations which safeguard public interest in foreign-related cases should not depend on the proper law chosen by the parties. Only after systematically considering the nature and purpose of such kind of rules and the consequences of their application can one decide whether to apply them or not. So, the application of third country mandatory rules means a return to unilateralism in conflict law.Currently, the Rome Convention, Rome I Regulation and other international and national legislations define the direct application of third country mandatory rules in the field of contract. Such institutionalized arrangement is a new phenomenon in the field of private international law. However, people have different opinions on how to establish an effective mechanism. At the same time, the traditional practices of considering or applying third country mandatory rules by the alternative approaches of substantive law and conflict law have always existed. It is also worth exploring their rationality and effectiveness. These problems have not engaged much attention in China, and the Act of the PRC on the Applicable to Foreign-related Civil Relations does not make them clear. Therefore, this paper takes the application of third country mandatory rules in the field of contract as a subject, and uses the methods of historical analysis, normative analysis, case analysis and comparative analysis, striving to resolve the problem and make a breakthrough. Specifically, in addition to the preamble and conclusion of dissertation, the main content is developed in six chapters, which are as follows: Chapter I discusses some basic issues of the application of third country mandatory rules. It mainly explores the meaning, approaches of application and theoretical basis of third country mandatory rules, which provides a foreshadowing for the following discussion. Firstly, it analyzes the meaning of third country mandatory rules from the perspective of 'internationally mandatory rules','third country' and 'application'. Secondly, it describes several theories, which include the traditional theories of choice of laws, theory of foreign public law, proper law theory, Materiellrechtliche Beriicksichtigung and datum theory, special connection theory, combination theory and the doctrine of interest analysis, so as to show there is a big theoretical controversy in the application of third country mandatory rules, and to provide methodological support for the depiction of different categories discussed below.Chapter II discusses the historical development of the application of third country mandatory rules. Firstly, it explores the formation process of the theory of application of internationally mandatory rules in a number of representative countries, such as United Kingdom, France, Germany and Netherland, which describes the historical background of the regimes of the application of third country mandatory rules. Then, it mainly analyzes the disputes in the process of forming the Article7paragraph1of Rome Convention and Article9paragraph3of Rome I Regulation and their impacts on the other relevant international and national legislations after their adoption. It defines the precautions for the evolution of institutionalization of application of third country mandatory rules, which provides references for the designation of the regimes of application of third country mandatory rules indicated below.Chapter III discusses the regimes of application of third country mandatory rules, which form the general way of applying third country mandatory rules. Firstly, paying high attention to the substance of the regimes, and focusing on its function as a referral provision, which helps the third country mandatory rules enter into the field of private law. Secondly, combining Rome Convention, Rome I Regulation and other mature legislations, it specifically designs the regimes of application of third country mandatory rules from the perspective of the requirements of connection, requirements of the effects of application, discretion and methods of application, considerations of application and the role of international law.Chapter IV discusses how to alternatively apply third country mandatory rules by the substantive law approaches and conflict law approaches when an effective regime of application absents. According to the judicial practices of various countries, as to substantive law approaches, firstly, we could make a contract invalid or revocation by considering the violation of third country mandatory rules ab initio as a special situation which infringes the public policy and boni mores, or as a gross misunderstanding between the parties at the time of conclusion of contract. Secondly, we could terminate or adjust a contract by considering the supervening implementation of third country mandatory rules as impossibility of performance or hardship based on the provisions on regimes of force majeure or change of circumstances. As to the conflict law approaches, we could use restrictions on the freedom of choice of law by the parties, advantage of classification and depecage, exception to the closest connection, the conflict rules on the special private laws, renvoi and other regimes in the field of the conflict of laws to establish the internationally mandatory rules of foreign countries which should form a part of third country's law the qualification of proper law. However, as a result of inherent defects, either substantive law approaches or conflict law approaches could replace the function of regimes of application of third country mandatory rules.Chapter V analyzes the situations of the extraterritorial application of Chinese law which plays the role of third country mandatory rules. The Act of the PRC on the Applicable to Foreign-related Civil Relations defines the provision of direct application of Chinese internationally mandatory rules. It is a problem to be resolved that how could such kind of rules be recognized by a foreign court. Combining a series of recent cases, it specifically analyzes the application of Chinese internationally mandatory rules in the United Kingdom, New York of United States and Hong Kong Special Administrative Region. So we can find the problems of conflict of laws when applying Chinese law extraterritorially as internationally mandatory rules. In the way, it provides reference for the Chinese party in international litigation to propose a good demurrer.Chapter VI summarizes the feasible approaches for the application of third country mandatory rules in China. Firstly, on the basis of analyzing the attitude to third country mandatory rules in Chinese past theories and practices of private international law, it explores the obstacles to accept the direct application of third country mandatory rules, and provides several designations for the regime of application of third country mandatory rules in China. Secondly, it explores the alternative approaches to apply third country mandatory rules under the existing framework of Chinese substantive law and conflict law.
Keywords/Search Tags:Third country mandatory rules, Internationally mandatoryrules, Regimes of application, Conflict law approaches, Substantive lawapproaches
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