The Research On The Validity Of Party Autonomy In International Contract Law

Since Dumoulin of France put forward the idea of party autonomy in the sixteenth century, the choice of law has been respected by many states, and now its effectiveness has expanded from contracts to various areas such as right infringement and marriage. With the value-oriented philosophy of law transferring from the individual to the community, party autonomy restrictions are growing in international law of contract, which make the problem of the validity of party autonomy more complex. On the validity of party autonomy in confirming the applicable law of contracts, the thesis carries out the research from theory to practice and from actuality to suggestion, which is divided into four parts to make a comprehensive, profound, systematic and rational research.The first part makes clear the concept of party autonomy in international contract laws and the essential meaning of its validity, which lays a solid theoretic foundation for the system analysis and legislative design in practical way. Compared with the freedom of contract on the substantive law, the definition of party autonomy in international contract law has specific meaning, referring only to the law of freedom of choice. The validity of party autonomy is the evaluation of the consequences of this act. The validity of party autonomy is the focus and the key of the effectiveness of party autonomy, which is also the core issue of party autonomy. The operation of this issue is connected with the whole of the application of international contract law. With the development of international civil law practice, the validity of party autonomy has four characteristics of the times, which are chief, exclusive, expansive and restrictive. It is precisely these characteristics for the party autonomy study that provides the basic researching way or method. On the basis of the contrastive study in the theoretic differences of party autonomy, the second part has a macroscopic view of the legislative reality of party autonomy around the whole world in rational way, which provides the reality foundation for us to deepen the understanding of this issue. While there are theoretical differences about the advantages and disadvantages of this principal, party autonomy as the most important rule of international law applicable to contracts is unquestionable. In addition to domestic law, some international conventions also have the provisions of party autonomy.The third part is the confirmation of the validity of party autonomy in international contract laws, which is a kind of practical research on the basis of theoretic explanations and reality descriptions in former parts. It is the focus part of this thesis. Fundamentally, the root source of party autonomy has its profound humanity basis of equal and free expression of the inherent demand; moreover, the economic development of the capitalist system also adds fuel to the fire of party autonomy. Humanity desire and economy promotion are the primary impetuses for us to pay attention to the confirmation of the validity of party autonomy. The Evaluation of the validity of party autonomy is connected with the worldwide collision of the concept of justice and the balance of public and private interests; so it is a very complicated system. In this complex system, the first thing is to make clear judging standards of the party autonomy as evaluation criterion of the court. The law in juridical country and the decided law by the parties as a legal option in the standard for judging the validity of party autonomy in certain aspects are all reasonable, and different choices reflect a different judicial philosophy.In the recognition of the validity of party autonomy, the analysis of recognition factors is the most important and the most controversial element. In the external factors affecting the validity of party autonomy, due to the independence of the contract dispute settlement provisions, the validity of the choice of law is not directly impacted by the effectiveness of the contract. However, the existence of mandatory rules will completely rule out the necessity to evaluate the validity of party autonomy. In the internal factors, the form, time, nature of law, scope, consequences of the choice-of-law have important roles on the validity of party autonomy. On the form of choice-of-law, there is difference between the implied and the explicit choice. To respect the parties' choice of law in the greatest degree will continue to oppose the judge's subjective self-contradictory authorization, which is the internal conflict of the choice-of-law. On the time of choice of law, there are different opinions among countries. However, the choice of law after contract is welcome and more and more respected. As for the nature of the selected law, it is the major problem whether the parties can choose the conflict law, which involves the relationship between party autonomy and renvoi. Although the legislative and judicial practice about party autonomy to exclude renvoi is going toward consistence, the nature of selected law is still a major factor affecting the validity of autonomy. The scope limitation includes limitation to the scope of time and space. The problem whether the parties can choose the laws that haven't come into force or have lost their effect reflects the issue that whether the applicable law of the contract can "freeze". The emergence of the international entity law with the theory of legal freedom of choice will significantly broaden the popularity of the spatial extent of party autonomy. Finally, the consequences of the choice of law can not be contrary to public order in the country, and can not be contrary to the public order of other relevant countries which have the substance of the case. Only in this way can we help balance the interests of justice and international order of the unified civil and commercial matters. Validity of party autonomy is the core and key of party autonomy. It reflects the trend in international contract law application and the elaborate system of private international law, so the recognition of the validity of party autonomy has far-reaching theoretical value and practical importance.The fourth part is carried out for our legislative improvement about the validity of party autonomy, which is a domestic research on the law choice of party autonomy in the law application of international contracts. On the basis of the systematic study of the validity of party autonomy, it is imperative for us to carry out rigorous and scientific system design according to China's Legislation and Judiciary theory and reality. At present, the system about the validity of party autonomy is mainly embodied in the "General Principles of Civil Law" and the "Contract Law". Moreover, the "civil aviation law" which went into effect in 1995 and the "maritime law" in 1992 have also relevant legislation, but these provisions are too broad and have been unable to fully meet the needs of the development of China's foreign trade. With the promulgation of the 1999 "Contract Law", the validity of the original "Answers on the application of the foreign economic contract law by The Supreme People's Court" gets some oppugn. We should adopt more specific legislation on the exercise of the specific rules of party autonomy to really promote the further development of international contract law practice. In specific systems design, we should use the advanced experience from other country, properly understand the "international" standard of the contract, and scientifically define the field of application of choice of law in the contract. In addition, it is necessary to introduce compulsory rules in the protection of the rights of the weak and other related fields, strengthen the operability of public order reservation system, and appropriately expand the scope of choice of law, all of which are inevitable to reflect the trend of the validity of party autonomy.