Party autonomy in contractual choice of law in China / Jieying Liang.
2018
KNQ484 .L536 2018 (Map It)
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Author
Title
Party autonomy in contractual choice of law in China / Jieying Liang.
Published
Cambridge, United Kingdom ; New York, NY : Cambridge University Press, 2018.
Copyright
©2018
Call Number
KNQ484 .L536 2018
Former Call Number
Ch.P 998 L6132 2018
ISBN
9781107169173 hardcover
1107169178 hardcover
1107169178 hardcover
Description
xxxvi, 339 pages ; 24 cm
System Control No.
(OCoLC)1005693942
Summary
"The principle of party autonomy in contractual choice of law is widely recognised in the law of most jurisdictions. It has been more than 30 years since party autonomy was first accepted in Chinese private international law. However, the legal rules provided in legislation and judicial interpretations concerning the application of the party autonomy principle are abstract and open-ended. Without a critical understanding of the party autonomy principle and appropriate interpretations of the relevant legal rules, judges have not exercised their discretionary power appropriately. The party autonomy principle has been applied in a way that undermines its very purpose, that is, to protect the legitimate expectations of the parties and promote the predictability of outcomes in transnational commercial litigation. Jieying Liang addresses the question of how, when, and with what limitations, parties' choice of law clauses in an international commercial contract should be enforced by Chinese courts"-- Provided by publisher.
"The principle of party autonomy in contractual choice of law gives parties to an international contract the freedom to choose the law to govern their contract"-- Provided by publisher.
"The principle of party autonomy in contractual choice of law gives parties to an international contract the freedom to choose the law to govern their contract"-- Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Table of Contents
Preface
xiii
Acknowledgements
xv
List of Abbreviations
xvii
Table of Cases
xxii
Table of Statutes, Judicial Documents and International Instruments
xxviii
1.
Development of the Party Autonomy Principle in China
1
1.1.
Before the Adoption of the Reform and Opening-Up Policy in 1978
5
1.2.
Partial Acceptance of Party Autonomy before the 1999 Contract Law
6
1.3.
After the Enactment of Contract Law and before the 2007 Provisions
9
1.3.1.
Complete Acceptance of Party Autonomy in Chinese Private International Law
9
1.3.2.
Issues Outstanding after the Enactment of Contract Law
10
A.
Change of the Applicable Law
10
B.
Statutory Restrictions on Party Autonomy
12
1.4.
After the 2007 Provisions and before the 2010 Conflicts Statute
14
1.4.1.
2007 Provisions
14
A.
Parties' Choice Should Be Express
14
B.
Restrictions on Parties' Autonomy
15
C.
Ascertainment of Foreign Law
16
1.4.2.
SPC's Interpretations Relating to Mandatory Rules
17
1.5.
2010 Conflicts Statute
18
1.6.
Overview of the Book
20
1.6.1.
Structure of the Book
20
1.6.2.
Methodology
22
2.
Background to the Development of Party Autonomy
26
2.1.
Historical Development of the Party Autonomy Principle
26
2.2.
Justifications of Party Autonomy
29
2.3.
Source of Parties' Autonomy
30
2.3.1.
Law of the Forum Provides the Entry Point
30
2.3.2.
International Law as a Source and the Idea of `Individual Sovereignty'
32
2.3.3.
Implications of the International Approach
36
2.3.4.
Summary
39
2.4.
Nature of Parties' Choice of Law
40
2.4.1.
Choice of Law Agreement as a `Promise'
41
2.4.2.
Choice of Law Agreement as a `Contract'
43
2.4.3.
Summary
45
2.5.
Relevance of International Debate to the Development of Party Autonomy in China
46
2.5.1.
Evolution of Freedom of Contract in China
46
2.5.2.
Nature of Private International Law: A Chinese Perspective
48
3.
Existence and Validity of Parties' Choice of Law
50
3.1.
Identification of the Existence of Parties' Consent on Choice of Law
51
3.1.1.
Inconsistent Approaches in Determining Parties' Consent in Bills of Lading
51
3.1.2.
Burden of Proof in a Bill of Lading Taken as a Contract
54
3.1.3.
Special Issues in a Bill of Lading Taken as a Standard Contract
55
3.1.4.
Trade Usage and the Formation of Contract
58
A.
Trade Usage in China's Contract Law
59
B.
Trade Usage and the Formation of Contract in International Instruments
61
C.
Trade Usage in the Formation of a Dispute Resolution Agreement: The Brussels Regime
63
D.
Elements to Be Considered in the Determination of the Existence of Trade Usage
67
E.
Summary
73
3.1.5.
Contracts Where a Third Party Is Involved or Another Document Is Incorporated
75
3.1.6.
Standard Contracts Involving Weaker Parties
79
3.2.
Determination of the Validity of Parties' Choice of Law
81
3.2.1.
Criteria Adopted by People's Courts
82
A.
Party's Unilateral Change or Choice of the Governing Law
82
B.
Typographical Errors in a Choice of Law Clause
84
C.
Summary
85
3.2.2.
Law Governing the Material Validity of Parties' Choice
85
4.
`Law' That Can Be Chosen by Parties
89
4.1.
Meaning of `Law' in the 2010 Conflicts Statute
90
4.1.1.
`Law' That Can Be Chosen by Parties in the Previous Rules
90
4.1.2.
Meaning of `Law' in the 2010 Conflicts Statute
93
4.2.
Application of International Treaties and Practice in Foreign-Related Commercial Litigation
96
4.2.1.
Application of International Treaties Concluded or Acceded to by China
97
4.2.2.
Application of the CISG in China and Party Autonomy
100
4.2.3.
Status of International Practice
103
4.3.
Effect of Parties' Reference to Rules Other Than a Legal System of a State
104
4.3.1.
Inconsistent Approaches in Treating a Paramount Clause
105
4.3.2.
Nature of the Paramount Clause
108
4.3.3.
Distinction between Incorporation by Reference and Choice of Law
112
A.
Importance of the Distinction in Theory and Practice
112
B.
Requirement of Certainty of Terms in Incorporation
118
4.4.
Conclusion
119
5.
Statutory Restrictions on Party Autonomy (I)
120
5.1.
Scope of Mandatory Rules
121
5.1.1.
Mandatory Rules in Chinese Domestic Contract Law
122
5.1.2.
Mandatory Rules in the 2010 Conflicts Statute
123
5.1.3.
Difficulties of Identifying Mandatory Rules after the 2010 Conflicts Statute
126
A.
Definition of Mandatory Rules in Private International Law
126
B.
Difficulties under the 2010 Conflicts Statute
127
5.1.4.
Evasion of Law Exception after the 2010 Conflicts Statute
130
5.2.
`Social Public Interest' Reservation in Contractual Choice of Law
134
5.2.1.
Definitions and Expressions in Different Fields
134
A.
Service of Process and Taking Evidence for a Foreign Proceeding
136
B.
Recognition and Enforcement of Foreign Judgments
138
C.
Recognition and Enforcement of Foreign Arbitral Awards
139
5.2.2.
Meaning and Scope of `Social Public Interest' in Contractual Choice of Law
145
6.
Statutory Restrictions on Party Autonomy (II)
150
6.1.
Interrelationship between `Social Public Interest' and Mandatory Rules
150
6.1.1.
Foreign Investment Regulation
151
6.1.2.
Foreign Exchange Regulation
157
6.1.3.
Public Policy and Mandatory Rules in the Recognition and Enforcement of Foreign Arbitral Awards
160
6.2.
Identification of Mandatory Rules and the Use of the `Social Public Interest' Reservation in Contractual Choice of Law
162
6.2.1.
State Policy and Its Representation in Legal Sources
162
6.2.2.
Identification of Mandatory Rules and Statutory Interpretation
165
6.2.3.
Article 10 of the SPC's Interpretation of the 2010 Conflicts Statute (1)
171
6.2.4.
Application of the Social Public Interest Reservation in Contractual Choice of Law
175
7.
Ascertainment of the Foreign Law Chosen by Parties
176
7.1.
Development of the Rules on Ascertainment of Foreign Law: Outstanding Issues
177
7.1.1.
Article 193 of the 1988 Opinions
177
7.1.2.
Article 9 of the 2007 Provisions
181
A.
Ambiguity Concerning the Introduction of Foreign Law into Court
182
B.
Responsibility to Ascertain the Selected Foreign Law
185
C.
Evaluation of the Information on Foreign Law
187
7.2.
Ascertainment of Foreign Law in the 2010 Conflicts Statute
187
7.2.1.
Article 10 of the 2010 Conflicts Statute
187
7.2.2.
SPC's Interpretation of the 2010 Conflicts Statute
190
A.
Further Ambiguity Concerning the Procedural Treatment of Foreign Law and Determination of Parties' Intention
190
B.
Parties' Responsibility to Assist a Court in the Ascertainment of Foreign Law
193
C.
Assessment of the Information on Foreign Law
195
7.3.
Summary
196
7.4.
Introducing the Selected Foreign Law into Court
196
7.4.1.
Fact/Law Distinction
197
7.4.2.
Nature of Choice of Law Rules in China
198
7.4.3.
Role and Power of a Court in International Civil Litigation
199
7.5.
Establishing the Content of the Selected Foreign Law
203
7.5.1.
Roles of Parties and Courts in Ascertaining the Selected Foreign Law
203
7.5.2.
Assessment of the Information on Foreign Law
204
A.
Inconsistent Criteria Adopted by People's Courts
204
B.
More Authentic Approach Is Needed for the Assessment
207
7.5.3.
Effects of the Failure to Ascertain the Selected Foreign Law
213
7.6.
Conclusion
215
8.
Contractual Choice of Law under the `One Country, Two Systems' Regime
217
8.1.
One Country, Two Systems and Four Law Districts
219
8.1.1.
High Degree of Autonomy of Hong Kong and Macao
219
8.1.2.
Taiwan Region
228
8.1.3.
Relevant Provisions in Judicial Documents Concerning the Application of Hong Kong, Macao and Taiwan Laws
230
A.
Characteristics of Conflict of Laws among the Four Law Districts
230
B.
Provisions Concerning Hong Kong- and Macao-Related Cases
233
C.
Provisions Concerning Taiwan-Related Cases
235
8.2.
Scope of the `Social Public Interest' Reservation under the `One Country, Two Systems' Regime
237
8.2.1.
Applicability of the Reservation in Hong Kong-, Macao- and Taiwan-Related Cases
237
8.2.2.
Analysis of `Social Public Interest': Taking Gambling Debt as an Example
240
A.
Application of the Social Public Interest Reservation in Gambling Debts
240
B.
Public Policy in Mainland China in Relation to Gambling
244
C.
Social Public Interest, the Connection of the Case to the Forum and the Control of Gambling in the Mainland
247
D.
`One Country, Two Systems' Principle and Social Public Interest
250
E.
Summary
251
8.2.3.
Dimensions of the Reservation under the `One Country, Two Systems' Regime
252
8.3.
Ascertainment of Hong Kong, Macao and Taiwan Laws
254
9.
Party Autonomy Principle in the Context of the Chinese Legal System
259
9.1.
Indeterminacy of Chinese Legal Rules
259
9.2.
Judicial Quality and Institutional Constraints on Chinese Judges
262
9.2.1.
Centralized Jurisdiction System
262
9.2.2.
Institutional Constraints on Judges
265
9.3.
Institutional Constraints and Foreign-Related Commercial Trial in China
270
9.4.
Concluding Remarks
273
Bibliography
276
Index
328