Applicable Law Of Foreign-related Choice Of Court Agreements

The applicable law of foreign-related choice of court agreements has a bearing influence on its effectiveness,therefore,it is of great significance in the international resolution practice.There has always being dispute between the applicable law of foreign-related choice of court agreements,and the mainly methods are two viewpoints of"unification" and "separation".There are two specific approaches to the"unification theory":one is to apply "jurisdiction law" that is expressly or impliedly selected by the parties,and the other is to apply "forum law".However,the unification theory" is not in conformity with the nature of foreign-related choice of court agreements,and it cannot satisfy its exact and comprehensive legal content.The independence over foreign-related choice of court agreements has undergone a lengthy and progressive process in exploring its nature,the various aspects involved the application of its laws.When making specific judgments,the formal validity and substantive validity of foreign-related choice of court agreements are two fundamentally different issues.Therefore,the applicable law should be differentiated.,Compared with formal validity issues,the applicable rules on the substantive validity of foreign-related court choice agreements are complex and important.The substantive validity of foreign-related choice of court agreements includes procedural issues and substantive issues,which are separable.Procedural issues include its executive issues,and substantive issues include interpretation issues.The interpretation issues of foreign-related choice of court agreements may also be called analytical issues.They refer to the substantive issues that determine the effectiveness of foreign-related choice of court agreements,such as the scope of application and its exclusionary effectiveness;The procedural issues of the effectiveness of foreign-related choice of court agreements,such as mandatory law and good faith.The interpretation issues of foreign-related choice of court agreements have contractual nature,which is essentially a "contract" that regulates the parties' rights and obligations concerning the selection of courts.Therefore,jurisdiction law should be applied;The executive issues of foreign-related choice of court agreements have procedural consequences concerning the jurisdictional country.The application of forum law is the natural requirement of procedural law.It needs to be clarified that the two aspects of the applicable law of interpretation and the enforceability issues of foreign-related choice of court agreements are not juxtaposed,but are hierarchical.As Peel pointed out,if a distant rule is not ultimately determined by the intention of the parties,then the only possible alternative is to regard it as an external rule that limits liability to a reasonable extent.The proper application of the applicable law on the interpretation issues and enforceability issues of foreign-related choice of court agreements is very instructive to dispute resolution.China can also accept the "separation theory" to decide the applicable law of foreign-related choice of court agreements.The substantive validity of foreign-related choice of court agreements should be divided into two aspects:the interpretation issues and the enforceability issues,then apply various laws in accordance with the nature of its various aspects.