The Restriction On The Principle Of Party Autonomy In Private International Law

The principle of party autonomy is a long-standing legal principle.The principle, since its beginning,has played a huge role in theinternational relations in civil and commercial matters. However, theprinciple has a trend of gradual expansion in its scope of applicationand has also had many problems in practical use; which both needed to besettled theoretically and practically. The Law of the People’s Republicof China on Choice of Law for Foreign-related Civil Relationships hasentered into force in2011, whichmakes explicit provisions on the autonomyprinciple and restriction measures on the use of the principle. TheJudicial Interpretation of the Law of the People’s Republic of China onChoice of Law for Foreign-related Civil Relationships, effective onJanuary7th,2013, further clarify the restrictions on the application ofthe autonomy principle and its overall attitude towards the principlejudicially. These all provide references towards the further study of therestrictions on the principle of autonomy in theory and practice.To this end, the author tries to identify the overall attitude andspecific restrictions in practice in China’s legislations towards theprinciple of party autonomy through analysis and research on the relevant provisions in these two laws. The article is divided into three parts.The first part will be a brief analysis of the underlying concept ofthe autonomy principle, including its theoretical sources, the extensionof the concept and the origin of the right, as well as the specificapplication as the theory of the law application. Also, the whole pictureof the autonomy principle will be shown through the analysis and researchof related concepts.The second part will enter directly into the research of therestrictions of autonomy principle, which will include the analysis ofthe limitations of the autonomy principle through conflict specificationapplication system, as well as the limitations through peremptory norm.The limitations of the principle through conflict specification includerecognition, public order, as well as identification of the foreign law;the limitations of peremptory norms include domestic peremptory norms aswell as those of the third country.The third part will focus on China’s legislative restrictions againstthe principle of autonomy, whichdivides into restrictions onthe Choiceof Law for Foreign-related Civil Relationships and the other threecommercial laws. The Choice of Law for Foreign-related CivilRelationshipsincludes the overall attitude of the Law on the restrictionstowards autonomy principle, the contract part and other areas. The otherthree commercial legislations include Negotiable Instruments Law,Maritime Law and the Law on Civil Aviation.