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Party Autonomy in Contractual Choice of Law in China

Liang, Jieying

Authors



Abstract

This book is about the application of the party autonomy principle in contractual choice of law in China. It addresses the question of how, when, and with what limitations, parties’ choice of law clauses in an international commercial contract should be enforced by people’s courts. It argues that in China, a choice of law clause in contract should only be interfered with or overridden by the lex fori when it is necessary to secure a broader public interest, the justification of which should be formed in legislation rather than in administrative rules. In the interests of the predictability and certainty of transnational litigation in China, it is important for the legislature to establish a comprehensive system of legal rules concerning the enforceability of choice of law clauses. It is far more important for the judiciary to interpret and apply those rules in specific cases consistently, respecting the intent of the parties. In doing so, people’s courts should consider the theories and principles of private international law, and exercise their discretionary power with caution, demonstrating that they have done so by providing logical and detailed reasoning in their judgments.

Book Type Authored Book
Online Publication Date Feb 28, 2018
Publication Date 2018-03
Deposit Date Sep 7, 2018
Publisher Cambridge University Press
DOI https://doi.org/10.1017/9781316718377
Keywords party autonomy, choice of law clauses, Chinese private international law, trade usage, incorporation by reference, statutory restrictions, public policy, mandatory rules, ascertainment of foreign law, ‘one country, two systems’, judicial quali
Public URL https://durham-repository.worktribe.com/output/1122362
Publisher URL https://www.cambridge.org/gb/academic/subjects/law/private-international-law/party-autonomy-contractual-choice-law-china?format=HB