Research On The Application Of The Party Autonomy In The Foreign Contracts

“Foreign contracts” in international private law associate with two or more than two nation’s law, and apply different laws in different nations, the results are often different. The foreign contracts mentioned in this paper are referred to the international civil or commercial contracts which do not include contracts mandatory applicable Chinese law, and the contracts concerning marriage, guardianship, heritage, customs, taxes or administrative affairs.The application of law system to foreign contracts has experienced a long and complicated evolution process. From the 13 th century to the 19 th century, it has experienced a development of 600 years. Now, the principle of party autonomy has developed into the first principle and the doctrine of most significant relationship is the supplement.Considering the representativeness of conflict of law in Europe and America,this paper cites their practice of legislation and jurisdiction as the comparison object. In the mean time, This paper will analyzes the practice of legislation and jurisdiction in our country.In the first section, we review the developing history of the law applicable to foreign contracts. From the 13 th century to the 19 th century,from the continent of Europe to the America,from the principle of locus regit actum proposed in the Statute Theory times to the principle of party autonomy by Charles Dumoulin to proper law of a contract, we can conclude that after long time of development, the principle of party autonomy has become the first principle for countries to deal with the law applicable to foreign contracts, and the doctrine of most significant relationship has become the supplementary rule to the principle of party autonomy. And the practice of legislation in connection with the principle of party autonomy in our country is also introduced. The practice of legislation in our country include Article 145 of the civil law and the related provisions. Because of the abolishment of Article 126 of the contract law and the related provisions, the supreme people’s court issued about the applicable law in foreign-related civil or commercial contract disputes on several issues in 2007 to make up for the deficiency of the current legislation for foreign-related civil and commercial contract cases in judicial practice. On October 28, 2010, the 11 th session of the 17 th session of the standing committee of the National People’s Congress passed the foreign-related civil applicable laws and come into force on April 1, 2011. And we can find some conflict after comparing these regulations.In the second section, based on the 30 cases from the practice of jurisdiction in our country, this paper analyze the issues in the use of the law in the court, and make a comment of express or implied choice of law, confusing with the application of the principle of party autonomy and the doctrine of most significant relationship and so on.In the third section, based on the analysis of the practice of legislation and jurisdiction in our country, improving advices are proposed on the basis of the international trend and excellent cases in this paper. Such as establishing the mode of implied choice of law in the legislation, untangling the relationship between the principle of party autonomy and the doctrine of most significant relationship, standard legal document writing, improving the judge concept of international private law and treating the foreign legal system equal.