Freedom Of The Method Of Selection Of The International Parties To The Contract

As to legal appliance of foreign contract, party autonomy has become primary principle. Various countries have generally respected the freedom of law choosing. However, the different views exist in various countries about concrete regulation in legislation. This essay attempts to made comparative research to the concrete methods of various countries and international convention, in order to achieve the goal of perfecting relevant legislation of our country.This essay is composed of 30,000 words and divided into four parts.The first part discusses the norm of verifying international contract. There are three kinds of standards about verifying international contract, which are legal standard, economic standard and subjective standard. The author agrees with the subjective standard. That is, it will be an international contract, when parties make clauses of law choosing.The second part discusses the way of choosing law. There are two ways of choosing law. That is expressed intention and implied intention. This part mainly expounded the way of implied intention from three respects. First of all, on the basis of listing different attitudes in different countries, the author thinks implied intention is necessary to exist. Secondly, the presumption of the implied intention must be reasonable certainty. Presumption must be based on relevant behavior factors that are about party's subjective will. Finally, It analyses various kinds of factors in presuming implied intention.The third part discusses what kind of law that parties have the right to choose freely. This part carried on the discussion from four respects mainly. First of all, the author thinks that the law that the party chooses must not be the law of conflict, but the substantive law. Secondly, whether the law that parties choose must have connections with contract .On the basis of analyzing relevant legislation of various countries, the author think that we should comply with the trend and allow parties to choose a unconnected law to govern their contract. Thirdly, about choosing the international convention and international practices According to the" general Principles of civil Code " of our country, Parties may choose domestic law or foreign law to govern their contract. But there is not aclear regulation about choosing international convention and international practices. This section take "CISG" as an example to discuss that international convention should be allowed to choose. Considering the specialty of international practices, the author thinks international practice should be allowed to choose as the applicable law of the contract. The international practice that the party chooses must not conflict with public interests of relevant domestic laws; can't conflict with expressed clause of the contract. Finally, whether party could choose the law of the unrecognized state. There are two kinds of views about this question. Between the mutual recognition and application of foreign law, the inevitable connection does not exist. Private international law aim at settling civil relation containing foreign elements and should allow parties to choose the law of the unrecognized state.The fourth part discusses restriction on the freedom of law choosing. First of all, about public order .The section focuses on how to apply public order to restrict the freedom of law choosing. Secondly, about the principle of good faith. The parties' choice should be restricted by the principle of good faith. The author thinks this principle should be mainly used to prevent legal interest of parties from hurting. Thirdly it is a special contract question. The author thinks that the systems of the weak of protection should be set up in the private international law in our country. The author mainly discusses the mode of legislation about consumption contract and employment contract. Finally, about the mandatory rules. It discussed foreign mandatory rules and domestic mandatory .we should distinguish the broadly defined mandatory rule and narrowly-defined mandatory rule. As to application of foreign mandatory rule, this section focus on application of mandatory rule of the third country .On the basis of analysis of the methods of various countries briefly, the author think that the application of mandatory rule of the third country need higher standard.