Party Autonomy in Chinese Courts: With Special References to the Archangelos Gabriel Salvage Case

서지정보

ㆍ발행기관 : 이준국제법연구원 ㆍ수록지정보 : China and WTO Review / 4권 / 2호
ㆍ저자명 : Xintong Li

목차

1. Introduction
2. Classification of the Contract andthe Applicable Law
A. Improper Classification of the Contract by the SPC
B. Different Provisions and Legal Effects of the Two Applicable Laws
3. Application of ‘Party Autonomy’in Chinese Courts
A. Timing of Choice of Law by Parties
B. General Provision of Party Autonomy
C. Uncertainty of the Application of Law
4. The Improper Limitation on Party Autonomyand Its Negative Impacts
A. What the Party Autonomy Protects for?
B. The Proper Limitation on Party Autonomy
5. Conclusion
Re ferences

영어 초록

From the perspective of ‘Archangelos Gabriel’ salvage case, this article probes into the application of party autonomy by Chinese courts in cases with foreign elements. The case, finally decided by the SPC, shows many judicial innovations and draw great concerns in both the Chinese judicial community and academia. However, it also shows a common judicial phenomenon that the improper timing of choice by parties and wrong choice-of-law rule invoked by the courts lead to the uncertainty of the applicable law and the judges could not deal with the implied choice cases properly. This gives rise to an urgent choice-of-law problem that the principle of party autonomy just empowers parties to choose the state of applicable law but not a particular law of a state. It is inconsistent with the nature of party autonomy and may further turn the party autonomy to a rule with the same nature of “choice of jurisdiction.”

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