The closest connection doctrine in the conflict of laws in China

Chinese Journal of International Law

Volumn 8, Issue 2, 2009, Pages 423-439

  Yu, Shuhong ^a   Xiao, Yongping ^a   Wang, Baoshi ^b  

^a WUHAN UNIVERSITY   (China)

^b UNIVERSITY OF HEIDELBERG   (Germany)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 68349088954     PISSN: 15401650     EISSN: 17469937     Source Type: Journal    
DOI: 10.1093/chinesejil/jmp018     Document Type: Article

References (62)

1. Willis L.M. Reese, Conflict of Laws and the Restatement Second, 28 Law and Contemporary Problems (1963), 699.
2. In the last two decades, this doctrine was continually researched. See, e.g., HUANG Jin, A Preliminary Study of the Conflicts Law System in China, 5 Zhongguo Shehui Kexue [Social Sciences in China] (1988), 155-166;
3. XIAO Yongping, The Application of the Closest Connection Doctrine in China's Conflict of Laws, 3 Zhongguo Shehui Kexue [Social Sciences in China] (1992), 149-162;
4. TANG Lixin and YU Fang, The Concretization of the Principle of the Closest Connection: How to Determine the Most Closely Connected Place, 6 Dangdai Faxue [Contemporary Legal Science] (2002), 158-161.
5. Adopted at the Tenth Session of the Standing Committee of the Sixth National People's Congress, promulgated by Order No. 22 of the President of the People's Republic of China on 21 March 1985, and effective as of 1 July 1985. With the enforcement of the Contract Law 1999, the Foreign Economic Contract Law 1985 has been invalidated.
6. Gazette of Supreme People's Court of P.R. China (1987), Vol. 4, 3-7.
7. Gazette of Supreme People's Court of P.R. China (1988), Vol. 2, 34-35.
8. Adopted at the 1429th Meeting of the Judicial Committee of the Supreme People's Court on 11 June 2007, No. 14 (2007), Judicial Interpretation of SPC.
9. See HAN Depei (ed.), Guoji Sifa [Private International Law] (Wuhan University Press, 1989), 223; LIU Zhenjiang, ZHANG Zhongbo and ZHANG Shangjin (eds), Guojisifa Jiaocheng [Textbook on Private International Law] (Lanzhou University Press, 1988), 223.
10. See LI Shuangyuan, On the Methods of Choice-of-Law to Settle Issues in the Relations of Private International Law, 3 Zhongguofa Zazhi [China LJ] (1984), 165-166;
11. See also LU Song, On the Principal of Most Significant Relationship, 8 Zhongguo Guojifa Niankan [Chinese YIL] (1989), 168.
12. See HUANG Jin, A Preliminary Study of the Conflicts Law System in China, 5 Zhongguo Shehui Kexue [Social Sciences in China] (1988), 155.
13. See FENG Kefei, Normalization of the Closest Relation Principle: A Preliminary Study, 5 Zhongguo Zhengfa Daxue Xuebao [Journal of China University of Political Science and Law] (1999), 112.
14. Art. 269 of the Maritime Law provides: "the parties to a contract may choose the law applicable to the contract, unless precluded by Chinese law. If the parties to a contract involving foreign elements failed to make such a choice, the contract shall be governed by the law of the country with which it is most closely connected".
15. Art. 126 of the Contract Law provides: "the parties to a contract involving foreign interests may choose the law applicable to settlement of their contractual disputes, unless precluded by Chinese law. If the parties to a contract involving foreign elements failed to make such a choice, the contract shall be governed by the law of the country with which it is most closely connected".
16. The relevant rule in Canadian case law requires application of the lex loci delicti commissi, which could be subject to a flexible exception in international cases. Section 145 of the Second Restatement adopts the most significant relationship test for the determination of the applicable law of torts. In the UK, Part III of the Private International Law (Miscellaneous Provisions) Act 1995 requires the application of the law of the country where the event occurs, subject to a rule of displacement.
17. For further discussion on these rules, see Dicey, Morris and Collins on the Conflict of Laws (Sweet & Maxwell, 14th edn, 2006), 1895-1900.
18. See also Lesli P. Hiller, The "Most Significant Relationship" Test of the Second Restatement of Conflicts and Its Effect Outside the United States in the Area of Torts, 12 New York ILR (1999), 55-88.
19. Accordingly, a court may be faced with a choice between the law of the place of injury and the parties' personal law. However, Art. 146 of the General Principles of Civil Law does not set forth the test to be employed in weighing one law against the other. Arguably, such a choice rests with judicial discretion.
20. See Art. 145 of the General Principles of Civil Law.
21. See Arts 182, 183, 185, 189 and 192 of the 1988 Opinions.
22. The General Principles of Civil Law does not purport to be a comprehensive codification. Instead, it is a mere skeletal consolidation of the few existing conflicts rules, together with some supplementary principles which the legislator feels are sufficiently developed to be adopted. See Tung-Pi Chen, PIL of the PRC: An Overview, 35 American JCL (1987), 451.
23. Although the Reply did not expressly use the wording "the presumption of the characteristic performance", most Chinese jurists take the regulations as the adoption of this presumption. See XIAO Yongping, The Most Significant Connection: A Comparative Study of Restatement of the Conflict of Laws (2d) and Chinese Law, 9 Zhongguo Guojisifa yu Bijiaofa Niankan [Chinese Yearbook of Private International Law and Comparative Law] (2007), 111.
24. For further discussions in this respect, see Dicey, Morris and Collins, The Conflict of Laws (Sweet & Maxwell, 14th edn, 2006), 1895-1900.
25. For instance, Art. 101 of the Model Law of Private International Law of China drafted by the Chinese Society of Private International Law applies the characteristic performance theory to concretize this doctrine, which stipulates particular choice-of-law rules for 24 kinds of contracts.
26. For further discussion in this respect, see XIAO Yongping, Xiao Yongping Lun Chongtufa [XIAO Yongping on the Conflict of Laws] (Wuhan University Press, 2nd edn, 2002), 174 et seq.
27. See XIAO Yongping, Guojisifa Yuanli [Principles of Private International Law] (Law Press, 2003), 186-187.
28. See Jiangsu Light Industrial Products Imp. Exp. Corp v. Jiangsu Globe Foreign Trade Transportation Co. and Brilliant International Corp. USA in Part D.
29. The steps are as follows: general principle→ presumptive rules → sweep up rule → general principle.
30. See LUO Junming, Choice of Law for Contracts in China: A Proposal for the Objectivization of Standards and Their Use in Conflicts of Law, 6 Indiana ICLR (1996), 447.
31. See XIAO Yongping, Guojisifa Yuanli [Principles of Private International Law] (Law Press, 2003), 47.
32. HUANG Jin and DU Huanfang, The 2001 Annual Survey of Chinese Judicial Practice in Private International Law, 5 Zhongguo Guojisifa yu Bijiaofa Niankan [Chinese Yearbook of Private International Law and Comparative Law] (2002), 455.
33. Ibid., 439-453.
34. HUANG Jin and DU Huanfang, The 2002 Annual Survey of Chinese Judicial Practice in Private International Law, 6 Zhongguo Guojisifa yu Bijiaofa Niankan [Chinese Yearbook of Private International Law and Comparative Law] (2003), 20-30.
35. HUANG Jin and DU Huanfang, The 2003 Annual Survey of Chinese Judicial Practice in Private International Law, 7 Zhongguo Guojisifa yu Bijiaofa Niankan [Chinese Yearbook of Private International Law and Comparative Law] (2005), 128.
36. HUANG Jin, LI Qingming and DU Huanfang, The 2004 Annual Survey of Chinese Judicial Practice in Private International Law, 8 Zhongguo Guojisifa yu Bijiaofa Niankan [Chinese Yearbook of Private International Law and Comparative Law] (2006), 95.
37. HUANG Jin, LI Qingming and DU Huanfang, The 2005 Annual Survey of Chinese Judicial Practice in Private International Law, 9 Zhongguo Guojisifa yu Bijiaofa Niankan [Chinese Yearbook of Private International Law and Comparative Law] (2007), 477.
38. HUANG Jin and LI Qingming, The 2006 Annual Survey of Chinese Judicial Practice in Private International Law, 10 Zhongguo Guojisifa yu Bijiaofa Niankan [Chinese Yearbook of Private International Law and Comparative Law] (2007), 477.
39. HUANG Jin, HU Wei and WANG Qingsong, The 2007 Annual Survey of Chinese Judicial Practice in Private International Law, 11 Zhongguo Guojisifa yu Bijiaofa Niankan [Chinese Yearbook of Private International Law and Comparative Law] (2008), 451.
40. Jiangsu Light Industrial Products Imp. & Exp. (Group) Corp. v. Jiangsu Globe Foreign Trade Transportation Co. and Brilliant International Corp. USA (1999) No. Wu-Hai-Fa-Shang-Zi (Wuhan Maritime Court Trial) 80.
41. See, e.g., Shanghai Saifeng International Trade Ltd v. Changzhou Branch of Industrial and Commercial Bank of China and Canara Bank (2006) No. Chang-Min-San-Chu-Zi (Changzhou Intermediate Court First Trial) 26.
42. (2008) No. Er-Zhong-Min-Chu-Zi (Beijing No. 2 Intermediate Court First Trial) 11002.
43. (2008) Gao-Min-Zhong-Zi (Beijing High Court Final Trial) 516.
44. CMA CGM Line v. Shandong Dongfang International Trade Corp. Ltd (2002) No. Lu-Min-Si-Zhong-Zi (Shandong Higher Court Final Trial) 20.
45. Jinxi Machinery Industry (Group) Corp. Ltd v. Rueckmais Schiff Corp. GmbH. (2001) No. Hai-Shang-Chu-Zi (Tianjin Maritime Court First Trial) 365.
46. (2001) No. Lu-Jing-Zhong-Zi (Shandong Higher Court Final Trial) 39.
47. Guanghong International Trade Ltd v. Guangju Lixin Materials and Construction Ltd et al. (2008) No. Sui-Zhong-Min-Fa-Si-Zhong-Zi (Guangzhou Intermediate Court Final Trial) 74;
48. Bank of China (Hong Kong) Ltd v. Zengcheng Economics and Trade (Group) Co., Ltd et al. (2007) No. Sui-Zhong-Fa-Min-Si-Chu-Zi (Guangzhou Intermediate Court First Trial) 17;
49. Panyu Branch of Industrial and Commercial Bank of China and Canara Bank v. Guangzhou Yidun Investment Ltd et al. (2006) No. Sui-Zhong-Fa-Min-Si-Chu-Zi (Guangzhou Intermediate Court First Trial) 351;
50. Walter Thomas Norwich v. Li Xiangdong (2005) No. Hai-Nan-Mins-Si-Chu-Zi (Hainan Intermediate Court First Trial) 46;
51. Trolli King Holdings Ltd et al. v. Shenzhen Hong Jie Da Express Ltd (2004) No. Yue-Gao-Fa-Min-Si-Zhong-Zi (Guangdong High Court Final Trial) 236;
52. Amlon Metals Inc v. Shanghai International Cooperation Co. and Shanghai Economic Development Ltd (2003) No. Yue-Er-Zhong-Min-Wu-Shang-Chu-Zi (Shanghai No. 2 Intermediate Court First Trial) 61;
53. ZHANG Qixiang v. Pallister Group Ltd et al. (2002) No. Guang-Hai-Fa-Chu-Zi (Guangzhou Maritime Court First Trial) 162.
54. However, the invocation of the closest connection rule has also sometimes extended the application of international conventions to cases outside their territorial scope. For further discussion in this respect, see XIAO Yongping and LONG Weidi, Selected Topics on the Application of the CISG in China, 20 Pace ILR (2008), 69-70.
55. HUANG Jin and DU Huanfang, The 2001 Annual Survey of Chinese Judicial Practice in Private International Law, 5 Zhongguo Guojisifa yu Bijiaofa Niankan [Chinese Yearbook of Private International Law and Comparative Law] (2002), 455.
56. Jiangsu Light Industrial Products Imp. & Exp. (Group) Corp. v. Jiangsu Globe Foreign Trade Transportation Co., Brilliant International Corp. USA (1999) No. Wu-Hai-Fa-Shang (Wuhan Maritime Commercial Trial) 80.
57. Hua Sheng Chang Financial Corp. Ltd v. LiFeng Corp. Ltd and HaiWei Investment Corp. Ltd (2002) No. Yu-Gao-Fa-Jing-Er-Zhong-Zi (Chongqing Supreme People's Court Final Trial), 96.
58. HUANG Jin and DU Huanfang, The 2003 Annual Survey of Chinese Judicial Practice in Private International Law, 7 Zhongguo Guojisifa yu Bijiaofa Niankan [Chinese Yearbook of Private International Law and Comparative Law] (2005), 128.
59. HUANG Jin, LI Qingming and DU Huanfang, The 2004 Annual Survey of Chinese Judicial Practice in Private International Law, 8 Zhongguo Guojisifa yu Bijiaofa Niankan [Chinese Yearbook of Private International Law and Comparative Law] (2006), 95.
60. HUANG Jin, LI Qingming and DU Huanfang, The 2005 Annual Survey of Chinese Judicial Practice in Private International Law, 9 Zhongguo Guojisifa yu Bijiaofa Niankan [Chinese Yearbook of Private International Law and Comparative Law] (2007), 477.
61. HUANG Jin and LI Qingming, The 2006 Annual Survey of Chinese Judicial Practice in Private International Law, 10 Zhongguo Guojisifa yu Bijiaofa Niankan [Chinese Yearbook of Private International Law and Comparative Law] (2007), 477.
62. Chinese source