Party Autonomy in Contractual Choice of Law in China

An original analysis of the practical operation of the party autonomy principle in contractual choice of law in China.

Jieying Liang (Author)

9781107169173, Cambridge University Press

Hardback, published 22 March 2018

372 pages
23.5 x 15.9 x 2.3 cm, 0.65 kg

'Private commercial relations with the People's Republic of China have grown significantly in recent years. Mechanisms for international dispute resolution are therefore important. Given differences in substantive law and uncertainty about a commercial partner's legal system, private agreements on the applicable law (party autonomy) become of central importance. Jieying Liang's work is a masterful and comprehensive study of the development of party autonomy and its present status under the 2010 Chinese Conflicts Statute, including limitations resulting from mandatory norms and the ability to choose non-state law. It is an indispensable resource.' Peter Hay, L. Q. C. Lamar Professor of Law Emory University, Atlanta

The principle of party autonomy in contractual choice of law is widely recognised in the law of most jurisdictions. It has been more than thirty 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.

1. The development of the party autonomy principle in China
2. The background to the development of party autonomy
3. The existence and validity of parties' choice of law
4. The 'law' that can be chosen by parties
5. Statutory restrictions on party autonomy (I)
6. Statutory restrictions on party autonomy (II)
7. Ascertainment of the foreign law chosen by parties
8. Contractual choice of law under the 'One Country, Two Systems' regime
9. The party autonomy principle in the context of the Chinese legal system.

Subject Areas: Contract law [LNCJ], Company, commercial & competition law [LNC], Private international law & conflict of laws [LBG], International law [LB], Law [L]