The Analysis Of German Allaianz Case On Maritime Transportation Contract Dispute

The preliminary question,as well as incidental question,has attracted extensive attention among the scholars in the field of international private law since its advancement.However,there exist big differences between the domestic and foreign scholars as for the details of preliminary question research,such as its standard,solution and so on,which causes the overseas legislation and judicial practice appear different as well.Therefore,a more furtherer research on the preliminary question is very necessary.In addition,there is also a controversy in theory and practice as to whether the accessory legal source shall be recognized when regarding the scope of the proof of foreign law.Taking the dispute between Allianz Global Corporate & Specialty SE and NHE Shipping Incorporated on maritime transportation contract of goods as an example,the concept,constituent elements,solutions of the preliminary question will be discussed detailed in this paper,and the scope of the proof of foreign law,so as to provide some relevant suggestions for legislation and juridical practice of China.This article consists of three parts.The first part briefs the case,including the judicial abstract of the courts of first and second instance,as well as summarizes the issues of Allianz Case based on the verdicts.The second part is theory and practical analysis on the three issues of Allianz Case.Firstly,compared with some other scholars nowadays,reflecting on the conventional views about constitution elements of preliminary question referred by Morris,and re-concluding the standard of preliminary question combined with our legislation and legal practice,which contains four conditions: precondition,independence,foreignness,supereminence.Then the author applies the theory to verify whether Allianz Case meet the four elements.Secondly,this part refers some relevant theories of the solution of preliminary question on the private international law community,and points out its advantages and disadvantages,then analyzing the solution of preliminary question in the Allianz Case.In addition,our legislation lacks the regulation of the scope of the proof of foreign law,which leads to neglecting the role of accessory legal source in judicial practice and affecting fair justice.Therefore,this part analyzes the third issue the scope of the proof of foreign law of Allianz Case.The third part puts forward some suggestions based on the focus of the dispute in this case,which involving lack of clear provisions on the concept and constitution elements of thepreliminary question and the scope of the proof of foreign law,so as to provide appropriate solution for relevant cases in the future.