The Codification of Conflicts Law in China: A Long Way to Go

The Codification of Conflicts Law in China: A Long Way to Go Abstract The codification of conflicts law in China began with the 1918 Act on the Application of Law. However, the current conflicts law is mainly derived from the codifications initiated almost from scratch in the early 1980s. The 2010 Law on Choice of Law for Foreign-Related Civil Relationships is a milestone in the development of Chinese conflicts law. By drawing on the best elements from conflicts law codifications in Germany, Japan, and Switzerland, among others, as well as from the legal instruments of the European Union and the Hague Conference on Private International Law, the 2010 Law embraces some advanced global achievements in the field, such as the recognition of party autonomy as a general principle, the closest connection as a gap-filling principle, the principle of protection of the weaker party, habitual residence as a primary personal connecting factor, mandatory rules, and special choice-of-law rules for contract and tort disputes. However, the 2010 Law only repealed three conflicts law articles, and conflicts rules remain scattered throughout different statutes. Meanwhile, inconsistency and overlap still exist between the new rules and the old ones. The distinction between law in the books and law in action is of special significance here. Therefore, judicial interpretations, case decisions, and academic opinions are indispensable for lawyers both inside and outside China to grasp the essence of Chinese conflicts law. Finally, this Article identifies the challenges that will be encountered in the near future for conflicts codification in China and proposes some solutions. Introduction China1 has undoubtedly made significant progress in the codification of conflicts law2 in the past thirty years or so. As Professor Symeon C. Symeonides observed, the world has witnessed “a massive codification movement” in the last half century, in which China has been involved.3 In China, after a long isolation from the outside world, the codification of conflicts law was initiated again almost from scratch in the early 1980s. Now it boasts one freestanding statute and several other statutes that contain choice-of-law rules, as well as some corresponding judicial interpretations promulgated by the Supreme People’s Court (SPC).4 The sources of Chinese conflicts law are many and various. The latest enactment is the Law on Choice of Law for Foreign-Related Civil Relationships adopted at the seventeenth session of the Standing Committee of the eleventh National People’s Congress (NPC) on October 28, 2010 (the 2010 Law on Choice of Law).5 Although it is regarded as a comprehensive codification by some commentators both at home and abroad,6 it actually does not replace all the former choice-of-law rules, but instead only repeals three conflicts law articles.7 Most of the former choice-of-law rules remain intact. Before the adoption of the 2010 Law on Choice of Law, some basic choice-of-law rules had been codified in the General Principles of the Civil Law of 1986 (the 1986 GPCL).8 The 1986 GPCL is so remarkable in the development of China’s conflicts law that it is sometimes misunderstood as “the beginning of choice of law legislation in modern China.”9 In fact, two statutes were promulgated in 1985 that contained choice-of-law rules. Article 36 of the Law of Succession introduced the “scission” principle into China for the first time,10 a well-established conflict of laws principle in the common law world by that time.11 Article 5 of the Foreign Economic Contract Law (the 1985 FECL) adopted two fundamental principles of contract conflicts law, the principle of party autonomy and the principle of the closest connection, and stipulated that three kinds of foreign investment contracts in China shall be governed by Chinese law.12 After the 1986 GPCL, three commercial statutes were enacted; each of them contains a separate chapter dealing with conflicts issues. Chapter 14 of the Maritime Law of 1992 (the 1992 ML) includes, but is not limited to, choice-of-law rules for contracts of carriage of goods by sea, rights in rem in ships, collision of ships, and limitation of liability for maritime claims.13 The articles of Chapter 14 of the Civil Aviation Law of 1995 (the 1995 CAL) are quite similar to those of the 1992 ML, but they are more concise in content and fewer in number.14 Chapter 5 of the Negotiable Instruments Law of 1995 (the 1995 NIL) deals with the conflicts issues relating to negotiable instruments,15 and most of its articles derive from the two Geneva Conventions: the Convention for the Settlement of Certain Conflicts of Laws in Connection with Bills of Exchange and Promissory Notes (1930), and the Convention for the Settlement of Certain Conflicts of Laws in Connection with Cheques (1931).16 In 1999, the 1985 FECL and two other contract laws were consolidated into a uniform act—the Contract Law (the 1999 CL).17 Consequently, article 126 of the 1999 CL has replaced article 5 of the 1985 FECL. In addition, there exists a quasi choice-of-law rule in the Measures for Registration of Adoption of Children by Foreigners of 1999, which is different from other choice-of-law rules in form, but actually designates the applicable law for an effective adoption in China.18 The relationship between the above statutes is complex and must be clarified in order to better understand the true nature of Chinese conflicts law. As mentioned above, the 2010 Law on Choice of Law did not incorporate all existing choice-of-law rules, but rather established another set of rules and only repealed three conflicts law articles. Overlap and inconsistency exist between the new rules and the old ones.19 Article 2 of the 2010 Law on Choice of Law provides that “where other statutes have a special and different provision on the law applicable to a relation involving foreign elements, that provision shall be applied.”20 Based on this article, the provisions of the 1992 ML, 1995 CAL, or 1995 NIL shall prevail over those of the 2010 Law on Choice of Law because the former fall into the category of special provisions.21 But what is the relationship between the provisions of the 2010 Law and those of the 1986 GPCL or article 126 of the 1999 CL? The principle of lex posterior derogat priori should be resorted to, an approach widely accepted by the Chinese legal community.22 According to this principle, the provisions of the 2010 Law on Choice of Law prevail over the old ones because the 2010 Law was enacted later. However, this is only an academic interpretation. The final solution should be provided by the SPC in the form of a judicial interpretation. Judicial interpretations play a special and necessary role in developing Chinese conflicts law. From the phrase “judicial interpretation,” one might expect that the interpretation by the SPC is limited to interpreting the meaning of ambiguous choice-of-law rules. That is also the requirement of the Legislation Law of 2000 (the 2000 LL).23 Article 104 of the 2000 LL specifies that a judicial interpretation by the SPC “shall primarily focus on the specific clause of the statute in question and conform to the objectives, principles, and original meaning of the legislation.”24 However, in practice, the SPC has often supplemented or amended existing statutory provisions, or even created new rules.25 The SPC has taken even greater liberties in the area of conflicts law. This is primarily because conflicts law is an arcane area, “a dismal swamp,”26 “mired in mystery and confusion,”27 and legislators have been reluctant to make detailed rules, and instead have merely created a framework that leaves room for the SPC to develop rules within that framework.28 For instance, article 126 of the 1999 CL only provides two basic principles for numerous types of conflicts cases relating to contractual obligations. It has caused much confusion in its application. In order to unify court practice at all levels, the Rules of the SPC on the Relevant Issues Concerning the Application of Law in Hearing Foreign-Related Contractual Dispute Cases in Civil and Commercial Matters was issued in 2007 (the 2007 Rules), and included twelve articles in total, among which several new rules were created.29 Therefore, judicial interpretations are de facto a source of law in China.30 Nearly all of the important conflicts statutes have a corresponding judicial interpretation that is indispensable for lawyers both inside and outside China to grasp the essence of Chinese conflicts law.31 As in the United States, the distinction between law in the books and law in action is significant in China.32 A number of conflicts cases have been treated as domestic cases and have completely disregarded choice-of-law rules.33 In addition, it is commonplace that Chinese courts apply the lex fori, primarily due to their unfamiliarity with foreign law, even though most choice-of-law rules have no overt bias toward applying domestic law.34 Furthermore, expert opinions have been influential to some extent in the evolution of conflicts law even though academic doctrines are not formal sources of law. For example, as early as 2004, the High People’s Court of Guangdong Province invoked the doctrine of mandatory rules to make a decision even before the doctrine was adopted in the 2010 Law on Choice of Law.35 Therefore, the following discussion will use case decisions and academic works where appropriate in order to show the actual landscape of conflicts law in China. This Article analyzes the codification of conflicts law in China from a comparative perspective. For a long time, China has strived to establish a legal system with Chinese characteristics by drawing on the best elements of laws from all over the world.36 The codification of conflicts law is part of that process. The following discussion begins with a historical overview of the codification of conflicts law before and after the founding of the People’s Republic of China (PRC), so as to look into the motivations for codification at different stages and reveal the experiences and lessons thereof. This Article then examines some general issues in conflicts law to show how the legislature endeavors to assimilate the achievements of conflicts codifications outside China. Part III focuses on conflicts law for contracts, the rules most frequently applied in judicial practice. Part IV probes the conflicts rules for torts in general and for two particular types of torts. Finally, I draw conclusions from the Chinese conflicts codification, analyze the challenges that will be encountered in the near future, and propose some solutions. I. A Historical Overview Conflicts law is not part of the Chinese legal tradition but was received from the West. From the 1840s, China has developed into a transitional society facing great challenges that “never happened during the last three thousand years.”37 In order to cope with these challenges, one of the measures adopted has been to gradually depart from the criminal law-focused tradition and establish a new legal system similar to those of Western countries.38 The historical development of Chinese conflicts law can be divided into three periods: (1) the period before the founding of the PRC in 1949; (2) the period from the founding of the PRC to its accession to the World Trade Organization (WTO) in 2001; and (3) the period after its accession to the WTO. During the first two periods, political factors impacted heavily on conflicts codification; during the third period, the influence of economic considerations is more conspicuous. A. Before the Founding of the PRC in 1949 Many Chinese scholars assert that the codification of conflicts law in China can be traced back to a single clause in the Tang Code of the Tang Dynasty (618–907).39 One scholar even goes so far as to declare that the “legislation of China’s private international law has a glorious past.”40 This argument has even caught the attention of some American scholars.41 However, this argument is dubious. Article 48 of the Tang Code provided that when one uncivilized person infringed upon another uncivilized person’s rights, and both of them were from the same country, the law of that country should govern the crime; if they were from different countries, the law of the Tang Dynasty should apply.42 The official commentary that accompanied the Tang Code (Tanglü Shuyi) pointed out that this clause was applied to determine crimes and penalties.43 Such a provision should not be treated as a conflicts rule because conflicts law is “that part of the private law” dealing with civil or commercial matters involving foreign elements.44 Some commentators have argued that there was no distinction between civil law and criminal law in ancient China, and that the clause of the Tang Code could be applied to civil cases.45 But such an argument is indefensible because the latest research on the Tang Code convincingly demonstrates that its rules were merely criminal law rules, and criminal law was clearly distinguished from civil law.46 Furthermore, conflicts law can only exist where “respect is shown for foreign law” and “there is an atmosphere of equality.”47 Quite to the contrary, in ancient China, the relations between China and surrounding countries constituted a Sino-centric world order in which all other countries had to be “submissive and obedient” to China.48 The real beginning of the codification of conflicts law in China is the Act on the Application of Law (the 1918 Act), which was promulgated and came into effect on August 5, 1918, and consisted of seven chapters and twenty-seven articles.49 It covered general provisions of law, the capacity of persons, family relations, succession, property, contract, wrongful acts, and the formality of juridical acts.50 As a forerunner of freestanding statutes, it was principally modeled on the Japanese Hōrei of 1898 and was regarded as one of the “most detailed and comprehensive” statutes in the world at that time.51 It has also been commented on by foreign scholars.52 However, the effect of its application was rather unsatisfactory because, in practice, it was among the least frequently applied statutes in those days.53 In fact, the primary motivation in enacting the 1918 Act was not to provide conflicts rules to meet practical needs, but to demonstrate China’s determination to improve its legal system.54 After the First Opium War, many unequal treaties were imposed on China through which Western countries obtained the benefit of extraterritoriality, and foreigners in China were not subject to Chinese law or judicial jurisdiction, but to their own national law and consular jurisdiction.55 In order to abolish such extraterritoriality, China had to establish a comprehensive legal system that included conflicts law; therefore, the adoption of the 1918 Act was more significant symbolically than in fact.56 B. From the Founding of the PRC to Its Accession to the WTO in 2001 In this period, the 1918 Act was abolished and the codification of new conflicts law stumbled through political movements and economic reforms. This period can be further divided into two stages. The first stage stretched from 1949 to the early 1980s, and the second extended to China’s accession to the WTO in 2001. 1. From 1949 to the Early 1980s After the Communist Party of China took control of Mainland China in 1949, the Six Codes and other statutes of the former nationalist government, including the 1918 Act, were repealed as the new government sought to strictly distinguish the new socialist legal system from the previous capitalist one, and planned to paint “the freshest and most beautiful pictures” on “a blank sheet of paper free from any mark.”57 However, under the influence of the former Soviet Union, some basic statutes were enacted in the 1950s, and the whole country was soon involved in a series of political movements, most notably the Cultural Revolution from 1968 to 1978, which almost abolished all legal rules.58 During this stage, choice-of-law rules existed only in some consular treaties, such as the 1959 Sino-Soviet Consular Treaty.59 Not only was there scarcely any conflicts law, but anti-foreign sentiments were pervasive; research on conflicts law was regarded as a “forbidden, even perilous, academic pursuit,” for the discussion was associated with the capitalism.60 2. From the Early 1980s to 2001 In the late 1970s, China began to adopt a policy of economic reform and openness to the outside world, which put China on the road to a market economy.61 The proliferation of international economic activities called for legal rules to deal with the increasing number of conflicts cases.62 The 1985 FECL and the 1985 Law of Succession were enacted in the same year: the former was to solve commercial disputes, while the latter concerned succession matters. However, they both contained just one conflicts rule, which proved insufficient to deal with the enormous number of cases. Shortly thereafter, the 1986 GPCL was enacted and provided a separate chapter on conflicts law to meet the urgent need. In drafting this chapter, resistance to the adoption of a comprehensive conflicts system was strong. While the original draft consisted of twenty-eight articles relating to conflicts law, the number decreased to twenty-one in the second draft, to fourteen in the third, and to just nine in the final draft.63 Despite the powerful resistance, the economic demand finally prevailed, and some basic conflicts rules were established. The chapter in the 1986 GPCL covers the application of international treaties and usages, rights in rem in immovables, civil capacity, contracts, torts, marriage and divorce, maintenance, succession, and public policy. Because the articles are vague and general, the SPC had to issue a judicial interpretation for clarification and supplementation.64 Afterwards, the 1992 ML, the 1995 NIL, and the 1995 CAL were enacted; each contains one chapter dealing with their respective conflicts issues. As mentioned above, the 1999 CL later replaced the 1985 FECL.65 During this stage, a framework for conflicts law was constructed even though conflicts rules were scattered throughout different statutes and judicial interpretations.66 However, the flaws of this framework are obvious. First, some of the conflicts rules are incomplete. For example, article 144 of the 1986 GPCL only regulates rights in rem in immovable property, but not rights in rem in movable property. Second, some of the rules are obsolete. For instance, article 146 of the 1986 GPCL adopts the double actionability rule, which was later abolished in 1995 in the United Kingdom, where the rule had originated. Third, the legislative technique is inconsistent. Finally, some of the rules contradict each other.67 C. After the Accession to the WTO Since China’s accession to the WTO in 2001, the number of cases involving foreign elements has rapidly increased, and legislation on conflicts law has simultaneously accelerated. For example, from 2001 to 2005, commercial and maritime cases involving foreign elements heard by courts of first instance totaled 63,765.68 In 2002, a draft of a civil code (the Draft Civil Code) was submitted to the Standing Committee of the NPC for a first reading, and book nine of the draft was dedicated to choice-of-law rules and included eight chapters with a total of ninety-four articles.69 Yet, it was soon decided that the Draft Civil Code would not be adopted as a whole, but rather book by book.70 Thereafter, the draft of book nine received no action on the legislative agendas of the tenth and eleventh NPC for seven years. During this period, in response to the pressing demand for choice-of-law rules relating to contractual obligations, a detailed judicial interpretation of the 1999 CL was issued by the SPC in 2007.71 When the Tort Liability Law, the last book of substantive law of the Draft Civil Code, was adopted on December 26, 2009, the NPC Standing Committee resumed drafting conflicts law in order to “ensure the establishment of the socialist legal system with Chinese characteristics” before the end of 2010.72 Based on book nine of the Draft Civil Code and on a proposed draft by the Chinese Society of Private International Law (CSPIL), the Legislative Affairs Commission of the NPC Standing Committee drafted a bill that was submitted to the Standing Committee of the eleventh NPC for a second reading on August 23, 2010, and was soon released on the NPC’s website for public comment from August 28 to September 20, 2010.73 Though a great number of comments and opinions were received by the Legislative Affairs Commission, few of them were adopted.74 The bill was unanimously adopted with minor alterations by the NPC Standing Committee on October 28, 2010, and became effective on April 1, 2011.75 The NPC devoted less than a year to drafting the 2010 Law on Choice of Law, and its fifty-two articles are far fewer than the ninety-four articles of book nine of the Draft Civil Code. Even though legislators endeavored to learn from the legislative experience of other countries and account for the latest developments in conflicts law around the world,76 it was inevitable that the 2010 Law would provide only a framework for future development: most of its articles are general and ambiguous and leave many issues unresolved. Therefore, Interpretation I by the SPC on Issues Concerning the Application of the 2010 Law on Choice of Law was issued on December 28, 2012 (the 2012 Judicial Interpretation I).77 It aims to clarify and supplement the provisions of chapter one of the 2010 Law; it is likely that more judicial interpretations will be issued for other chapters in the near future. Academic opinions played an important role in this period. As early as 2000, a comprehensive model law of Chinese private international law by the CSPIL was published, and later became a blueprint for book nine of the Draft Civil Code.78 After the Legislative Affairs Commission decided to resume codification of conflicts law, the CSPIL was entrusted to provide a draft code; shortly afterward, a drafting team was formed and a proposed draft was submitted to the Legislative Affairs Commission in March 2010.79 Although many gaps still exist in the current conflicts law, basic conflicts rules have been established in China. By drawing on the best elements from the conflicts codifications in Germany, Japan, and Switzerland, among many others, as well as from the legal instruments of the European Union and the Hague Conference on Private International Law,80 the 2010 Law on Choice of Law embraces some advanced achievements in the world, such as recognition of the principle of protection of the weaker party, habitual residence as the primary personal connecting factor, and special conflicts rules for intellectual property. In the following Part, I discuss some general conflicts issues and special rules for contracts and torts, focused mainly on the 2010 Law on Choice of Law and the 2012 Judicial Interpretation I. II. General Issues in Conflicts Law A. Party Autonomy as a General Principle One of the prominent innovations of the 2010 Law on Choice of Law is that party autonomy is ascended to a general principle. Article 3 states that “the parties may, in accordance with a provision of law, expressly make a choice of law applicable to a civil relation with foreign elements.”81 Before 2010, the freedom of parties to make a choice of law was limited to contractual disputes under Chinese law.82 Even Switzerland, which is “perhaps the most liberal country on party autonomy,” does not elevate it to a general principle.83 However, careful examination of article 3 reveals that this provision might be not as significant as it appears, for it requires that the choice of law by the parties be made “in accordance with a provision of law.” It implies that only when another provision of law permits the parties to make a choice of law, do the parties enjoy such a right. Yet, the 2012 Judicial Interpretation I makes this article more meaningful. According to the Interpretation, the wording “expressly make a choice of law” in article 3 should not be read strictly so as not to cover cases where the parties invoke the same law and neither of them objects to the applicability of that law.84 Furthermore, the parties may even choose any international treaty that has not become effective in China as the law applicable to the dispute.85 The law chosen by the parties is not required to have an actual relationship with the dispute.86 The parties are also left much leeway to make a choice of law, which may be made before the end of closing arguments in the court of first instance.87 Although the significance of article 3 is rather symbolic, the principle of party autonomy actually affects many more areas in the 2010 Law on Choice of Law than ever before. Besides ordinary contracts (article 41, unrestricted88), this principle extends to the following issues: agency (article 16(2), unrestricted), trust (article 17, unrestricted), arbitration agreements (article 18, unrestricted), matrimonial property (article 24, choice between the law of a party’s habitual residence and country of nationality, and the law of the place where the main property is located), uncontested divorce (article 26, choice between the law of a party’s habitual residence and country of nationality), rights in rem in ordinary movable property (article 37, unrestricted), rights in rem in movable property in transit (article 38, unrestricted), consumer contracts (article 42, choice of the law of the place where the good or service is provided), torts (article 44, choice of law after the tortious act occurs), product liability (article 45, choice between the law of the tortfeasor’s principal place of business and the lex loci damni), unjust enrichment and negotiorum gestio (article 47, unrestricted), transfer and license of intellectual property rights (article 49, unrestricted), and liability for infringement of intellectual property rights (article 50, choice of the lex fori after infringement occurs).89 In total, the principle of party autonomy affects fourteen articles that account for more than one third of all special choice-of-law rules (forty articles in total). The basis for these provisions is the idea that “private matters should be dealt with primarily by private parties.”90 This idea is obviously influenced by the prevailing opinion among Chinese academics that the current trend in the world extends party autonomy to areas other than contracts.91 In addition, before the adoption of the 2010 Law on Choice of Law, some Chinese courts had applied the principle of party autonomy to areas other than contracts, such as rights in rem, equity interests, torts, and unjust enrichment, even though there were no provisions of law empowering them to do so.92 Thus these articles also reflect prior judicial practice. It is worth noting that party autonomy has been introduced into the area of rights in rem in movable property. As mentioned above, no conflicts rule existed in this area before the 2010 Law. Article 37 thus transforms China’s conflicts law from the lack of any rule to perhaps the most liberal regime with respect to rights in rem in movable property.93 It is similar to article 104 of the Swiss Federal Act on Private International Law of 1987 (the Swiss PIL Act); nevertheless the latter imposes limitations on the choice of law by parties in three regards: (1) the law chosen must be the law of the state of dispatch or destination, or the law that governs the underlying juridical act; (2) the parties may make a choice merely for issues of acquisition and the loss of rights in rem in movable property and not for other issues; and (3) this choice cannot be asserted against third parties.94 This excessively permissive provision of article 37 has been severely criticized by Chinese commentators.95 B. The Closest Connection as a Gap-Filling Principle The principle of the closest connection has been a flexible connecting factor for several years in China. It was first employed in 1985 to determine the law applicable to contractual disputes in the absence of an effective choice of law by the parties.96 The 1986 GPCL extends its application to maintenance obligations.97 The 1988 Opinions further employs this principle to determine the law of nationality where a foreigner has two or more nationalities, or to determine the domicile where a party has more than one domicile, or to ascertain the place of business where there is more than one place of business, or to resolve interregional conflict of laws.98 Among several principles and approaches, this principle has been most frequently employed to decide applicable law issues in more than a third of all cases in Chinese courts.99 Recognizing the merit of the principle in achieving justice in individual cases, China’s legislature raised it to a general principle for all civil relations with foreign elements. Article 2(2) of the 2010 Law on Choice of Law provides that “a civil relation with foreign elements is governed by the law with which the relation has the closest connection, unless otherwise provided by this Act and other laws.”100 Though it only plays a role as a gap-filling principle, as it does in Russian conflicts law,101 it is the first time that China has applied this principle to all areas, including commercial matters.102 It is important to recall that the drafts of the 2010 Law on Choice of Law had elevated the principle of the closest connection to a higher level. Articles 5 and 6 of the proposed draft submitted by the CSPIL employed the principle as a gap-filling and general escape device, while at the same time emphasizing that the applicable law should be fair to all parties.103 Article 6(1) was obviously influenced by article 15 of Swiss PIL Act.104 Article 6(2) required courts to examine the content of potentially conflicting substantive rules in order to ensure that the applicable law is appropriate, thus showing an American influence.105 During the second reading of the draft, this principle still enjoyed prominence as both a general escape and gap-filling device.106 The two drafts of the 2010 Law on Choice of Law reflect the prevailing opinion among Chinese academics at the time that the trend toward flexibility of conflicts law was prominent throughout the world and that the principle of the closest connection was a proper soft connecting factor.107 In contrast to scholars’ enthusiasm, Chinese courts unskillfully applied the principle: judges often employed it as an excuse to apply the lex fori “without closely weighing one connecting factor against another.”108 Probably based on judicial practice, the legislature finally chose certainty over flexibility, and the general escape clause was removed from the final draft, while the principle of the closest connection was inserted into two specific conflicts rules for contracts and negotiable instruments, both of which had previously employed rigid connecting factors.109 C. Habitual Residence as the Primary Personal Connecting Factor Strongly influenced by the conflicts law of civil law countries, China’s first conflicts statute adopted nationality as the primary personal connecting factor, whether for capacity of natural persons, family matters, succession, or even juridical acts.110 Nationality as a connecting factor has its advantages. It is easier to ascertain than domicile; it also reflects the relation between a person and a country, for a sovereign should make laws for his or her people based on the considerations of “their habits and temperament, their physical and moral qualities, and even the climate, temperature and fertility of the soil.”111 But the objections are more persuasive: it deprives a person of his or her right to freely choose a law, sometimes requiring a person to obey “the laws of a country to escape from which he has perhaps risked his life”; the applicable law should have an appropriate connection with a party, but the most easily ascertained law may not be appropriate; nationality makes no sense for solving interregional conflict of laws.112 After considering the disadvantages of nationality and under the influence of the common law, China’s legislature began to introduce domicile into some areas in the 1980s. For example, article 149 of the 1986 GPCL provides that succession of movables is governed by the law of the decedent’s last domicile.113 However, although widely used in Anglo-American common law, the term domicile has inherent defects. Its definition may vary in different circumstances and may be interpreted differently by different courts.114 It is difficult to prove a person’s intention to “reside permanently or for an unlimited time in a country,” which is necessary to acquire a domicile of choice.115 As a codified system, Chinese law has no precedents relating to the definition of domicile, so it employs the household registration system (hu kou) to determine domicile: “The domicile of a citizen shall be the place where his residence is registered . . . .”116 But this definition should only be employed in domestic substantive law rather than conflicts law. The search for a better personal connecting factor continues in China. Since the 1990s, more and more Chinese commentators have come to a similar conclusion, i.e., the developing trend in the world is to adopt habitual residence as a personal connecting factor.117 In addition, nearly half of all cases with foreign elements involve parties from Taiwan, Hong Kong, and Macao,118 the conflict of laws in these cases is interregional conflict for which nationality is meaningless. Therefore, China’s legislature finally adopted habitual residence as the primary connecting factor in the 2010 Law on Choice of Law. Out of fifty-two articles, habitual residence is employed in twenty-five.119 It is a challenge for Chinese courts to properly define habitual residence. As a term frequently used in the Hague Conventions and in the regulations of the European Union, it has a more elusive definition than domicile.120 Courts have resisted defining the term so that they will have more discretion to clarify it based on the facts of each individual case.121 Since the promulgation of the 2010 Law on Choice of Law occurred only recently, Chinese courts are not experienced in applying this flexible concept; their decisions are thus inconsistent and unpredictable. In order to clarify the meaning of the concept, the SPC has stated that the habitual residence of a natural person refers to the place where a natural person has consecutively lived for a period of no less than one year as his or her life center, at the time of the creation, change, or termination of any civil relation with foreign elements . . . except when the natural person lived there for medical treatment, labor dispatch, official duty, or other similar reasons.122 This provision is derived from article 9 of the 1988 Opinions, which specifies that “the place where a citizen consecutively lives for a period of no less than one year after leaving his or her domicile is his or her habitual residence, except that the citizen lives in hospital for medical treatment.”123 But this definition applies only to domestic cases rather than cases with foreign elements. In addition, the limitation of “no less than one year” is too rigid: it might defeat the purpose of the 2010 Law on Choice of Law to introduce a relatively flexible connecting factor. Last, but not least, determining “consecutively lived” is not an easy task, because many people nowadays move frequently from one place to another, for instance, working in one country for several months then studying in another place for some period.124 Regarding the personal connecting factor for a juridical person, there is a divergence between the “incorporation theory” mainly adopted in common law countries and the “real seat theory” used in most continental European countries.125 China has consistently adopted the incorporation theory as the main method to determine the personal law of a juridical person. The 1988 Opinions provides that “[f]or a foreign juridical person, the law of the place of its registration shall be deemed as its national law, and its civil capacity shall be governed by its national law.”126 The 2010 Law on Choice of Law stipulates that the internal affairs of juridical persons are governed by the law of the place of registration, but the law of the principal place of business may apply if the principal place of business is different from the place of registration.127 The 2010 Law incorporates the real seat theory to some extent, although the incorporation theory is still the preferred approach. D. Proof of Foreign Law Following the tradition of civil law countries, China has adopted a system of inquisitorial civil procedure and treats the application of foreign law as a question of law.128 The 1986 GPCL stipulates: “The application of law in civil relations with foreign elements shall be determined in accordance with the provisions in this chapter.”129 The 1988 Opinions further elaborates that courts shall apply the substantive law in accordance with the provisions of the 1986 GPCL.130 The 2010 Law on Choice of Law provides: “The law applicable to civil relations with foreign elements shall be determined in accordance with this Act. Where other statutes have special and different provisions on the law applicable to civil relations with foreign elements, those provisions shall apply.”131 The word “shall” implies that conflicts law is mandatory rather than discretionary. If it is a foreign law to which the conflicts rule refers, the court has the duty to apply it, even without a pleading to this effect by a party.132 At this point, there is a divergence between law in the books and law in action, because many conflicts cases have been treated as domestic cases by Chinese courts even where parties have agreed in their contract on the application of a foreign law.133 In addition, under the influence of the doctrine of facultative choice of law, some Chinese commentators have argued for treating conflicts law as being facultative in China, at least for the matters of which parties could freely dispose.134 More troublesome is the issue of the ascertainment of foreign law. Various methods have been used at different times. In 1987, the judicial interpretation of the 1986 FECL stipulated four methods to be employed by courts.135 In the next year, another method was added by the SPC. Thus five methods were prescribed: foreign law may be provided by the parties, by the central authority of the foreign country which has concluded a treaty of judicial assistance with China, by China’s embassy or consulate stationed in the relevant foreign country, by the embassy of the relevant foreign country in China, or by Chinese or foreign legal experts.136 Though the methods were various, the effect of employing them was rather unsatisfactory, and few courts actively made full use of them to ascertain foreign law because there were no detailed rules as to how to implement them and most courts were reluctant to apply foreign law.137 Based on judicial practice, the SPC substantially amended its former provisions in a summary of the national meeting of 2005 (the 2005 Notice): foreign law should be firstly provided or ascertained by parties via legal experts, international organizations, the Internet, etc., and foreign law books or other legal materials may be consulted simultaneously.138 Only when it is difficult for parties to provide foreign law may they petition the court to ascertain it.139 According to the provision, the parties bear the main burden for ascertaining the foreign law, while the role of the courts is secondary. This is contrary to the civil law tradition followed by China. Therefore, the 2007 Rules modified the approach and endeavored to properly allocate the duties between the court and the parties by stipulating that the parties should provide or ascertain the foreign law where the foreign law was chosen by them for a contractual dispute, and the court should ascertain the foreign law ex officio or require the parties to provide or prove the content of foreign law where the foreign law was determined according to the principle of the closest connection.140 This provision is limited to contractual obligations. Mainly based on this provision, the 2010 Law on Choice of Law extends the approach to all areas and elevates it to a statutory provision, as provided in article 10: “The foreign law applicable to a civil relation with foreign elements shall be ascertained by the people’s court, arbitration institution, or the administrative agency. Where the parties make a choice of a foreign law to be applicable, they shall provide the law of that country.”141 Under the new rule, parties are obliged to provide foreign law if they choose such a law, but generally it is still the court’s duty to ascertain foreign law ex officio, for the parties’ duty is limited to provide rather than ascertain the foreign law. Compared with the provision in the 2005 Notice, the new rule returns to the civil law tradition and the courts carry a heavier burden, though the delimitation between the court’s duty and that of the parties’ is now more clearly defined. However, the courts are rather passive in ascertaining foreign law, the same as before,142 and the new rule has been criticized by some Chinese commentators as being both too idealistic and legally paternalistic.143 It is a significant issue in practice to determine when courts cannot ascertain a foreign law; a case might be pending indefinitely if the question is not answered. In order to enhance judicial efficiency, the 2012 Judicial Interpretation I provides the following solution: Where the people’s court cannot ascertain a foreign law by such reasonable approaches as proof by the parties, the methods stipulated in an international treaty which is effective in the People’s Republic of China, proof by Chinese and foreign legal experts, and other appropriate means, the people’s court may determine such a foreign law as unascertained.  Where, pursuant to article 10(1) of the Law on Choice of Law for Foreign-Related Civil Relationships, parties who are required to provide a foreign law but fail to do so without a justifiable reason within the reasonable time as fixed by the people’s court, the people’s court may determine such a foreign law as unascertained.144 An immediate question is which law applies if the foreign law cannot be ascertained. The answer is almost the same in all judicial interpretations and in the 2010 Law on Choice of Law: Chinese law.145 However, some Chinese commentators have questioned whether such a simple answer has encouraged the “homeward trend” that has prevailed over the years in China.146 E. Mandatory Rules Occasionally applied by courts,147 and advocated by Chinese commentators for many years prior to 2010,148 the doctrine of mandatory rules received statutory recognition in article 4 of the 2010 Law on Choice of Law, which provides: “Where there exists a mandatory provision concerning civil relations with foreign elements in the law of the People’s Republic of China, that mandatory provision shall apply.”149 In comparison with the provision in the Swiss PIL Act, this article does not require courts to consider the particular purpose of the Chinese law, or consider the mandatory provisions of the foreign law.150 Unlike the provisions of the European Regulation on the Law Applicable to Contractual Obligations (Rome I Regulation),151 article 4 does not clearly distinguish between provisions of law “which cannot be derogated from by agreement” and “overriding mandatory provisions.” However, the phrase “concerning civil relations with foreign elements” seems to imply that this article merely focuses on “overriding mandatory provisions.”152 First noticed by Friedrich Carl von Savigny more than a century ago, and extensively discussed in many countries after mandatory rules were rediscovered by Phocion Francescakis in the 1950s, this special class of norms is still not susceptible to being clearly and precisely delineated.153 Professor Frank Benedict Vischer once pointed out that such rules should “express a strong policy of a State” and listed some areas that were pertinent to state interests, such as the regulation and control of the market and the national economy, protection of national interests in landed property, and control of the securities market.154 But these general descriptions may be of little value for individual cases: issues such as how to decide “strong policy” and whether all the rules in those areas should be treated as mandatory rules are still unsettled. Meanwhile, in modern societies, as Friedrich Juenger correctly realized, “interventionism has prompted an unprecedented proliferation of ‘strictly positive statutes’. . . . [M]ore of them are enacted every day,”155 and the unlimited application of mandatory rules would impair the smooth working of the conflicts system and, to some extent, defeat the purpose of the bilateral approach to resolving conflicts of laws. Fully realizing the risks inherent in the doctrine of mandatory rules, and the fact that most Chinese courts are unfamiliar with the notion of mandatory rules, the SPC clarifies mandatory rules as follows: Under any of the following situations, a provision of a law or administrative regulation that involves the public interests of the People’s Republic of China and which may not be precluded by parties’ agreement and may be directly applicable to the civil relation with foreign elements without considering the provision of a conflict-of-law rule, may be determined by the people’s court to be a mandatory rule according to article 4 of the Law on Choice of Law for Foreign-Related Civil Relationships where it involves: (1) the protection for the rights and interests of employees; (2) security of food or public health; (3) environmental security; (4) financial security such as the regulation of foreign exchanges; (5) antimonopoly and antidumping; or (6) any other situation determined to be a mandatory rule.156 The SPC interpretation seems to make things more complicated and therefore may not be of much help. The first part mainly describes the effect of mandatory rules, i.e., that they are directly applicable to foreign civil relations and supersede conflicts rules, rather than enumerates the criteria used to identify them, though it does clarify that “the law” in article 4 of the 2010 Law on Choice of Law should be understood more broadly as “a provision of a law or administrative regulation” and that only those rules aimed at protecting “public interests” may be mandatory rules. The second part reminds the courts of the areas in which mandatory rules are probably involved. However, the reasonableness of the list is debatable. Taking the first area as an example, since there exists a special conflicts rule for the protection of employees,157 the compulsory substantive rules of the lex fori should not be directly applied because considerations for the special protection have already been embodied in the conflicts rule.158 The fourteenth annual survey of Chinese conflicts cases discloses abuses of the doctrine of mandatory rules in some courts. Among fifty noteworthy decisions, the doctrine was employed in seven decisions (14%), and in some cases, the doctrine was improperly applied together with the unilateral conflicts rule or the doctrine of evasion of law.159 F. Characterization For the issue of what law shall apply to characterization, a simple solution is provided in the 2010 Law on Choice of Law. It stipulates that the characterization of a civil relation with foreign elements shall be governed by the law of the forum.160 It has essentially discarded the original provision in the Draft Civil Code that empowered courts to apply either the lex fori or the lex causae.161 The solution proposed by the CSPIL was also rejected: it had left some room for applying a law other than the lex fori.162 In choosing between the two approaches, the Chinese legislature was influenced by the great majority of continental European writers, though it did not acknowledge that the traditional European solution contains certain exceptions.163 Under such a rigid provision, Chinese courts will encounter difficulties when there is no equivalent in Chinese law to an institution of the foreign law. Some Chinese scholars have suggested the SPC should interpret this provision in a more “liberal” and “enlightened” manner,164 but the SPC remained silent on the suggestion in the 2012 Judicial Interpretation I. Prior to the 2010 Law on Choice of Law, the SPC had actually employed the lex causae rule to characterize a foreign relation as a trust rather than a commission contract,165 but the new statutory provision would prevent a similar solution from being adopted in the future. Furthermore, in contrast to the new American approach which focuses on an “issue,”166 the subject matter of the characterization in China is the whole civil relation. G. Renvoi Renvoi was adopted in the 1918 Act almost a century ago,167 and the pros and cons of the doctrine have been thoroughly examined since then.168 Mainly focused on the advantage of achieving international uniformity of decisions, the prevailing opinion in China strongly argues for the resort to renvoi.169 Therefore, article 8(2) of the proposed draft by the CSPIL adopted renvoi in a limited scope and provided that “[i]n matters relating to civil status, marriage and family issues, and succession, whenever foreign law should apply under this Act and the foreign law refers to the law of the People’s Republic of China, the law of the People’s Republic of China shall apply.”170 A similar provision can be found in the Draft Civil Code.171 However, renvoi is “a professor’s delight but a practitioner’s and judge’s nightmare.”172 The difficulties, such as unpredictability of result and the circulus inextricabilis caused by application of renvoi, have been fully discussed outside China.173 Fortunately, the Chinese legislature has rejected the ostensible advantages of renvoi and completely discarded it with the 2010 Law on Choice of Law, which provides that “[t]he foreign law applicable to civil relations with foreign elements does not include choice-of-law rules of that country.”174 With regard to the advantage of achieving international uniformity of decisions, Professor Tiezheng Liu from Taiwan eloquently rebutted the argument many years ago. He pointed out that the goal of international uniformity of decisions might be laudable and even achievable in a few cases, but the chances of achieving it are slim, for the achievement depends on a long list of limitations.175 More than ten years ago, two Chinese commentators argued against renvoi from a law-and-economics and historical perspective.176 Considering that the principles of party autonomy and of the closest connection are widely employed, and that most choice-of-law rules are flexible, it is indeed necessary and reasonable for the 2010 Law on Choice of Law to repudiate renvoi. H. Public Policy and Evasion of Law As a “last-ditch weapon wielded at the end of the forum’s choice of law process,”177 the public policy doctrine has been employed as a useful device to exclude the application of foreign law since the beginning of conflicts codification in China. Article 1 of the 1918 Act provides: “The application of foreign law under this Act shall be excluded if its provision is repugnant to the ordre public or boni mores of China.”178 Under this article, public policy was termed “ordre public or boni mores” and the content, rather than the consequences, of the application of a foreign law might lead to the exclusion of its application. Article 150 of the 1986 GPCL amended article 1 of the 1918 Act in three respects.179 First, the focus shifted from the content of foreign law to the results of the application of foreign law; second, public policy was termed “social and public interests”; and third, international usages may also be the target of exclusion. The first point is reasonable because it is common to focus on the results of applying foreign law.180 However, the other two points evoked much criticism from academics. The term “social and public interests” was criticized because public policy covers fundamental principles of law, prevalent conceptions of good morals and significant public interests, and the wording “social and public interests” is too simple and ambiguous.181 With regard to the third point, commentators argued that international usages should not be excluded for reasons of public policy because international usages themselves are optional rather than mandatory.182 In addition, another flaw of the above article lies in the fact that it does not stipulate which law shall apply after foreign law is excluded.183 Perhaps due to the influence of such criticisms, the new provision of the 2010 Law on Choice of Law is a great improvement: although the wording “social and public interests” remains intact, the provision now stipulates that “the law of the People’s Republic of China shall apply if the application of foreign law would prejudice the social and public interests of the People’s Republic of China.”184 The doctrine of evasion of law has never been adopted in statutory provisions, though it was embraced twice by the SPC in its judicial interpretations. It was created for the first time in the 1988 Opinions, which provides: “In case any party evades the compulsory or prohibitive provisions of law of the People’s Republic of China, the foreign law shall not be applied.”185 Although the doctrine was extensively discussed by commentators and considered an indispensible device to protect the authority of law and smooth working of the legal system,186 the legislature wisely remained silent in the 2010 Law on Choice of Law. However, the SPC revived the doctrine in the 2012 Judicial Interpretation I, which stipulates that “where a party intentionally evades the mandatory provisions of the laws or administrative regulations of the People’s Republic of China by establishing a connecting factor of a civil relation with foreign elements, the people’s court shall determine that it shall not lead to the application of foreign law.”187 However, this provision has attracted strong criticisms from Chinese commentators for the following reasons: it is inconsistent with many existing rules of law, the doctrine has never been proved necessary by past judicial practice, and the doctrine frequently leads to judicial autocracy that significantly encroaches upon the logical harmony and fundamental aims of the conflicts system.188 III. Choice-of-Law Rules for Contracts Among cases with foreign elements, contractual disputes account for the largest portion in China.189 Accordingly, more choice-of-law rules have been enacted in the area of contracts than in any other area: for example, article 5 of the 1985 FECL, article 145 of the 1986 GPCL, article 269 of the 1992 ML, article 188 of the 1995 CAL, article 126 of the 1999 CL, and articles 41–43 of the 2010 Law on Choice of Law, as well as two judicial interpretations (the 1987 Response and the 2007 Rules) focus on contractual obligations.190 These various rules may be confusing to outsiders. Thus the following discussion will begin by clarifying the relationship between the different rules, then probe the general choice-of-law rules, and finally analyze the special choice-of-law rules for consumer and employment contracts. A. Relationship Among Various Legal Resources It is not very difficult to prioritize the different statutes dealing with contract conflicts. As mentioned above, article 5 of the 1985 FECL was replaced by article 126 of the 1999 CL.191 Article 269 of the 1992 ML (governing contracts for the carriage of goods by sea) and article 188 of the 1995 CAL (governing contracts for the carriage of goods by air) take priority over article 41 of the 2010 Law on Choice of Law.192 The latter conclusion has been confirmed by the 2012 Judicial Interpretation I.193 It seems somewhat problematic to determine the relationship between article 145 of the 1986 GPCL, article 126 of the 1999 CL, and article 41 of the 2010 Law on Choice of Law, for all of them were enacted by the NPC and regulate similar subject matter, but they are essentially different in at least one respect: only the 2010 Law on Choice of Law has adopted the principle of characteristic performance.194 With respect to this question, the 2012 Judicial Interpretation I provides that the 2010 Law on Choice of Law should prevail over the other two statutes where the provisions in the former are different from those in the latter.195 This provision conforms to the principle of lex posterior derogat priori.196 However, article 126(2) of the 1999 CL, which stipulates the applicable law for three types of foreign investment contracts, remains effective, because it is a special provision for the matters not covered by the 2010 Law on Choice of Law.197 The binding force of the two judicial interpretations is complex. From the law-in-the-books perspective, both of them have been repealed. The 1987 Response was expressly abolished by the SPC on July 13, 2000, because the 1985 FECL was replaced by the 1999 CL.198 Some leading commentators argued that provisions of the 1987 Response were reasonable and had been widely accepted by courts for many years, and that it should continue to function as a guiding judicial opinion before the new judicial interpretation was issued.199 In practice, some courts followed the opinion and still invoked the 1987 Response to make decisions even after it was abolished.200 The 2007 Rules actually retained most of the choice-of-law rules of the 1987 Response but they were also declared invalid on April 8, 2013, because some provisions were incompatible with those of the 2010 Law on Choice of Law.201 About four years have passed since the 2007 Rules was abolished, and it is unknown when a new judicial interpretation will be issued. Meanwhile, numerous contract conflicts cases emerge every day, and the provisions of the 2010 Law on Choice of Law are simple and vague. Therefore, it is understandable that courts continue to consult the 2007 Rules even after its abolishment, and some courts even apply them expressly in making decisions.202 B. Choice-of-Law Rules for Contracts in General The only current conflicts rule for contracts in general is embodied in article 41 of the 2010 Law on Choice of Law, which provides: The parties may choose the law applicable to their contract. In the absence of a choice by the parties, the contract shall be governed by the law of the country where the party whose obligation of performance is characteristic of the contract has his or her habitual residence, or other laws which are most closely connected with the contract.203 This simple provision contains three principles: the principle of party autonomy, the principle of the closest connection, and the principle of characteristic performance. In order to understand the provision, one has to resort to related statutes and judicial interpretations. 1. Internationality of Contract The internationality of contract is an implicit requirement for the application of contract conflicts law.204 However, there is no special rule for determining the internationality of contract, and it should be governed by the general rule for defining a civil relation with foreign elements. The criteria for defining “foreign” are provided in article 1 of the 2012 Judicial Interpretation I: Under any of the following circumstances, the people’s court may determine a civil relation as a civil relation with foreign elements where: (1) either or both parties are foreign citizens, foreign juridical persons, or any other entity or stateless persons; (2) the habitual residence of either or both parties are situated outside the territory of the People’s Republic of China; (3) the subject matter is outside the territory of the People’s Republic of China; (4) the juristic fact that leads to the creation, change, or termination of a civil relation happens outside the territory of the People’s Republic of China; or (5) other circumstances that may be determined as a civil relation with foreign elements.205 This provision contains three elements: the parties, the subject matter, and the juridical fact. It is based on the three-element doctrine of legal relation,206 and further refines the provision of the 1988 Opinions.207 It also adds two additional considerations: habitual residence is added as the primary personal connecting factor in the 2010 Law on Choice of Law,208 and “other circumstances” is included in order to leave ample room for the future development of conflicts law.209 2. Party Autonomy In China, the principle of party autonomy has been employed to deal with contract conflicts for approximately a century. Article 23(1) of the 1918 Act provided that “[t]he formation and effects of obligation created by a juridical act shall be governed by the law determined according to parties’ intention.”210 Since then, the principle has been consistently employed in conflicts rules for contracts in general and regarded as the primary principle for contract conflicts law.211 Although the 2007 Rules was abolished, some of the rules concerning party autonomy were incorporated into the 2012 Judicial Interpretation I.212 It is worth noting that article 41 of the 2010 Law on Choice of Law provides that the parties may choose the law rather than the law of a state.213 It implies that nonstate norms may be chosen by the parties, regardless of whether they are international treaties or international usages.214 There is no special rule with respect to contractual capacity; it should be governed by the general rules on the capacity of natural and juridical persons. For the former, the law of the habitual residence of a natural person shall apply, but the lex actus shall apply if he or she would lack capacity under the law of the habitual residence but have capacity under the lex actus.215 For the latter, the law of the place of registration shall apply, but the law of the principal place of business may apply if the principal place of business of the juridical person is different from the place of registration.216 Four types of limitations are imposed on party autonomy: First, the application of the foreign law chosen by the parties should not prejudice the social and public interests of China.217 Second, for matters or issues governed by mandatory rules of China, the parties may not make a choice of foreign law.218 Third, the parties should not abuse the choice-of-law right in order to evade compulsory or prohibitive provisions of Chinese law.219 Fourth, contracts for foreign investment performed within the territory of China shall be exclusively governed by Chinese law.220 The last limitation merits further analysis. This limitation was first adopted in the 1985 FECL,221 and a similar provision was accepted by the 1999 CL, which provides: “The law of the People’s Republic of China shall govern a contract for a Chinese-foreign equity joint venture, a contract for a Chinese-foreign cooperative joint venture, or a contract for Chinese-foreign joint exploration and development of natural resources which is performed within the territory of the People’s Republic of China.”222 The 2007 Rules further extended the provision to six other types of foreign investment contracts.223 Meanwhile, the Civil Procedure Law stipulates that Chinese courts have exclusive jurisdiction over disputes arising from three kinds of contracts.224 Obviously, the combination of exclusive jurisdiction and application of Chinese law aims to ensure complete control over the activities of foreign investors in China. The rationales behind these provisions mainly lie in two aspects: First, activities of foreign investors occurring in China concern the sovereignty and national economic security of China, and second, these types of contracts have the closest connection with China.225 In the early stage of opening up to the outside world, China was not experienced in regulating foreign investments, thus these provisions were reasonable and necessary to some extent. However, it is now questionable whether such provisions should persist indefinitely, as China has adopted a comprehensive opening-up policy and doctrines such as mandatory rules and public policy are adequate to protect public interests.226 3. The Closest Connection and Characteristic Performance The relationship between the principles of the closest connection and characteristic performance was once clear-cut. Although the principle of the closest connection has the advantage of flexibility, it is too vague to provide precise guidance for courts and has been sharply criticized as a “give-it-up formula”227 and meaning “nothing except, perhaps, that the answer is not ready at hand.”228 In order to objectively determine which place has the closer connection with a contract, the principle of characteristic performance, a concept “coined in the Swiss literature and developed in the practice of the Swiss Federal Tribunal,”229 was first introduced into China in the 1987 Response.230 Mainly under the guidance of this principle, the applicable law was explicitly provided for thirteen types of contracts.231 The principle was also used to provide the applicable law for even more types of contracts in the 2007 Rules.232 In these two judicial interpretations, the principle of characteristic performance was employed to determine the place that has the closest connection with the contract, i.e., the place where the characteristic performer has his or her domicile or place of business. But such a determination is a presumption and it may be rebutted if there is another place which has a closer connection with the contract. The 2010 Law on Choice of Law incorporates the principle of characteristic performance in a statutory provision, but juxtaposes it with the principle of the closest connection.233 Thus, the relationship between the two principles has become blurred and confusing. The word “or” in article 41 demonstrates that courts have discretion in selecting either principle to determine the applicable law.234 In judicial practice, courts often refer to any one of them, depending on which one would lead to the application of Chinese law.235 The new provision has been criticized by some Chinese commentators as a step backwards in codifying contract conflicts law.236 C. Choice-of-Law Rules for Particular Types of Contracts 1. Consumer Contracts After extensive debate and repeated exhortation by academics for many years,237 a special statutory choice-of-law rule for consumer contracts finally came into being. Article 42 of the 2010 Law on Choice of Law provides: A consumer contract is governed by the law of the place where the consumer has his or her habitual residence. If the consumer makes a choice of the law of the place where the goods or services are provided, or the business operator does not pursue any related commercial activity in the place where the consumer has his or her habitual residence, the law of the place where the goods or services are provided shall apply.238 In contrast to article 56 of the proposed draft by the CSPIL,239 the parties are completely deprived of the right to make a choice of law, although such a right can be unilaterally exercised by the consumer and his or her choice is limited to the law of the place where the goods or services are provided. The purpose of this provision is twofold. One is to protect the weaker party, i.e., the consumer.240 The consumer may choose a law which is more beneficial to him or her, and in the absence of such a choice, the law of his or her habitual residence shall apply. The other purpose is to protect the legitimate expectations of the business operator.241 If the business operator does not pursue any related commercial activity in the place of the consumer’s habitual residence, then he or she could not expect to be governed by the law of that place, and the law of the place where the goods or services are provided should apply. In conclusion, this provision endeavors to balance the interests of the consumer and those of the business operator. However, there are several unresolved issues. First, no definition of a consumer contract is provided.242 The “consumer contract” is not an autonomous concept; it is necessary to clearly determine who can be treated as an eligible consumer or professional.243 Although there is a definition of consumer in domestic law,244 it is doubtful whether this definition can be used in conflicts law. Second, it is unclear whether article 42 of the 2010 Law on Choice of Law should cover all kinds of consumer contracts. Unlike the provisions of the Rome I Regulation, some particular kinds of contracts, such as contracts of carriage, insurance contracts, and contracts relating to a right in rem in immovable property, are not excluded.245 Third, it is difficult to determine if a business operator pursues “any related commercial activity.” For instance, should the mere fact that the consumer has access to an operator’s website be treated as a decisive factor?246 No answer for such questions can be found. Finally, this provision does not satisfactorily deal with the problem of whether the consumer can effectively make a choice of law as a weaker party. Because of the language barrier and the lack of knowledge of foreign law, it might be impractical at best, and impossible at worst, for most consumers to choose a law which is more beneficial to them. 2. Employment Contracts As in the conflicts law for consumer contracts, no special choice-of-law rule for employment contracts had been provided in any statute prior to the 2010 Law on Choice of Law, and it was neglected even in the Draft Civil Code.247 Fortunately, the significance of such a rule was finally realized by academics and it first appeared in the proposed draft of the CSPIL.248 In article 57 of the proposed draft, the principle of protection of the weaker party was fully reflected.249 However, the proposed article was not completely accepted by the legislature. Article 43 of the 2010 Law on Choice of Law provides: An employment contract is governed by the law of the place where the employee carries out his or her work or, failing to determine the place thereof, the law of the principal place of business of the employer. The labor dispatch may also be governed by the law of the place where the labor is dispatched.250 Compared with the proposed article in the CSPIL draft, this provision does not grant the parties the right to make a choice of law, and the phrase “favorable to the employee” has disappeared.251 Considering that the law of the place where the employee carries out his or her work or the place of the principal place of business of the employer may not be beneficial to the employee “in any situation,” it is difficult to conclude that such a provision really reflects the principle of protection of the weaker party.252 In contrast to Article 8 of the Rome I Regulation, the flaws of the above Chinese provision seem more obvious. First, the Chinese provision does not distinguish between individual employment contracts and collective employment contracts.253 A trade union is generally not treated as a weaker party in negotiating with the employer,254 and it is unnecessary to adopt a special conflicts rule for collective employment contracts.255 Therefore, the Chinese provision should expressly limit its scope to individual employment contracts. Second, the meaning of “the place where the employee carries out his or her work” is ambiguous. An employee may work in several countries for varying lengths of time. Thus, qualifiers, such as “habitually” or “from which,” seem necessary to determine the place of work.256 Finally, the Chinese provision leaves no room for the principle of the closest connection and its inflexibility in this regard may lead to injustice in special cases.257 The rule in article 43 on labor dispatch is full of Chinese characteristics and worthy of further analysis. A labor dispatch arrangement involves three parties: a dispatching company, dispatched employees and a host employer, and two contracts—an employment contract between the dispatching company and the dispatched employees, and a dispatch contract between the dispatching company and the host employer.258 However, a question arises as to the meaning of “labor dispatch.” Does it cover the two contracts mentioned above or does it only refer to the employment contract between the dispatching company and the dispatched employees? The parties to a dispatch contract usually have equivalent bargaining power and therefore the conflicts rule for contracts in general should apply. Under article 43, the employment contract between a dispatching company and dispatched employees should be governed by the law of the place where the employee carries out his or her work or, failing that, the law of the principal place of business of the employer or the law of the place where the labor is dispatched.259 IV. Choice-of-Law Rules for Torts Choice-of-law rules for torts are scattered throughout three statutes: the 2010 Law on Choice of Law, the 1992 ML, and the 1995 CAL. Prior to the 2010 Law, article 146 of the 1986 GPCL provided the basic rules for torts in general, and contained the lex loci delicti rule, the common domicile or nationality exception, and the double actionability rule.260 This article has played an important role in the development of conflicts law for torts in China. On the one hand, it retained the main elements of article 25 of the 1918 Act (the lex loci delicti and double actionability rules).261 On the other hand, it significantly influenced the enactments of article 273 of the 1992 ML and article 189 of the 1995 CAL. However, the defects of article 146 of the 1986 GPCL were noticeable. At least from the wording, its scope of application was limited to compensation, and other issues relating to torts were not covered. The double actionability rule became obsolete after it was generally abolished in 1995 in the United Kingdom, where the rule had originated.262 Therefore, article 146 of the 1986 GPCL was expressly repealed and replaced by article 44 of the 2010 Law on Choice of Law. The choice-of-law rules for particular torts in the 1992 ML and the 1995 CAL remain intact because they are special provisions and thus applicable under article 2 of 2010 Law on Choice of Law.263 In addition to choice-of-law rules for torts in general, the 2010 Law on Choice of Law provides special choice-of-law rules for product liability and the infringement of personality rights. These rules will be discussed in detail below. A. Choice-of-Law Rules for Torts in General As the current choice-of law provision for torts in general, article 44 of the 2010 Law on Choice of Law provides: Tort liability is governed by the law of the place of the tort. If the parties have a common habitual residence, the law of the common habitual residence shall apply. If the parties make a choice of law by agreement after the tortious act occurs, the law chosen by the parties shall apply.264 This provision is different from article 146 of the 1986 GPCL in at least four respects. First, the scope of application is extended from compensation to tort liability. Second, habitual residence replaces nationality and domicile as the personal connecting factor. Third, the double actionability rule is abandoned. Finally, the principle of party autonomy is introduced into tort conflicts law. In contrast to Article 4 of the European Regulation on the Law Applicable to Non-contractual Obligations (Rome II Regulation),265 article 44 of the 2010 Law on Choice of Law does not adopt the principle of the closest connection as an escape clause, and the article seems inflexible to some extent. Furthermore, some parts of article 44 are ambiguous and need to be further analyzed, as I will do below. 1. Lex Loci Delicti Rule As mentioned above, the lex loci delicti rule has been consistently adopted as a basic rule for torts.266 Although the rule seems simple, it is difficult to ascertain the meaning of “the place of the tort,” and there are various solutions in the codifications around the world.267 Article 187 of the 1988 Opinions provides that the place of the tort included the place of the tortious act and the place of damage, and the court could choose either of them where they differed.268 This judicial interpretation was intended to clarify the locus delicti rule in article 146 of the 1986 GPCL, and should cease to have binding force since article 146 itself was repealed.269 Some Chinese commentators have suggested that the SPC should embrace the favor laesi principle in future judicial interpretations for tort conflicts law.270 2. Common Habitual Residence Exception At least two aspects distinguish the common habitual residence exception in the 2010 Law on Choice of Law from that in the Rome II Regulation. Whereas this exception is subject to the principle of the closest connection under the Rome II Regulation,271 such a limitation does not exist in the 2010 Law on Choice of Law, and the law of the common habitual residence shall apply whenever the parties have a common habitual residence.272 The Chinese rule provides that the law of the common habitual residence applies to all issues relating to tort liability, including the issues of conduct regulation and loss allocation.273 In contrast, Article 17 of the Rome II Regulation requires that “account shall be taken” of the “rules of safety and conduct.”274 A comparison with the American rules also demonstrates that the Chinese common habitual residence exception is rather categorical. The distinction between conduct-regulation rules and loss-distribution rules has been widely accepted in the United States.275 The issue of conduct regulation is usually governed by the law of the place of the tort, for this law has “a predominant, if not exclusive, concern” about the standards of conduct, whereas the issue of loss distribution is usually governed by the law of common domicile, for this law cares about “the benefits and the burdens” of the parties.276 This distinction is considered as “one of the major breakthroughs in American conflicts thought” and “one of its major contributions to international conflicts thought.”277 Obviously, the Chinese legislature did not learn from the American experience. However, Chinese commentators have suggested that the SPC should embrace this American contribution in any future judicial interpretation.278 3. Party Autonomy The adoption of the principle of party autonomy is a breakthrough in the development of Chinese tort conflicts law. The feasibility of allowing the parties to make a choice of law for torts was discussed as early as the 1980s.279 The principle was first introduced in article 116 of the Model Law of Private International Law by the CSPIL in 2000, but the law chosen by the parties was limited to the lex fori.280 This provision was followed by article 81 of book nine of the Draft Civil Code.281 However, the limitation of the lex fori was deleted from the bill on its second reading at the Standing Committee of the eleventh NPC in 2010.282 Under article 44 of the 2010 Law on Choice of Law, the parties may freely choose any law, including the lex fori, even if the law has no factual connection with the tort.283 However, the choice can be made only after the tort has occurred.284 This timing requirement follows the prevailing legislative trend around the world.285 Unfortunately, article 44 does not require that the choice not prejudice the rights of third parties as required by the Rome II Regulation.286 B. Choice-of-Law Rules for Particular Types of Torts 1. Product Liability In recent years, Chinese courts have decided numerous cases relating to product liability in which some defendants were renowned transnational companies.287 The lack of special choice-of-law rules for such cases embarrassed the courts who had difficulty finding a proper law.288 In response to the urgent practical need, the conflicts rule for product liability has been introduced for the first time. Article 45 of the 2010 Law on Choice of Law provides: Product liability is governed by the law of the place where the victim has his or her habitual residence. The law of the tortfeasor’s principal place of business or the law of the place of injury shall apply if the victim makes a choice of the law of the tortfeasor’s principal place of business or the law of the place of injury, or the tortfeasor does not pursue any related commercial activity in the place where the victim has his or her habitual residence.289 This special rule aims to strike a reasonable balance between protection of the victim and the foreseeability of the tortfeasor. On the one hand, it favors the victim to apply the law of his or her habitual residence with which he or she is familiar. Furthermore, the victim enjoys the unilateral right of choosing the law of the tortfeasor’s principal place of business or the law of the place of injury if he or she is not satisfied with the result of applying the law of his or her habitual residence. On the other hand, it favors the tortfeasor in that it provides that if the tortfeasor does not pursue any related commercial activity in the victim’s habitual residence, the law of the victim’s habitual residence shall not apply even though this law is beneficial to the victim. It is questionable whether the aim of article 45 could be achieved. The victim’s interests might weigh much more heavily than those of the tortfeasor.290 The victim is given broad freedom to make a choice among three different laws. The mere method left for the tortfeasor to defeat the application of the law of the victim’s habitual residence is to prove that he or she does not engage in any business commercial activity in that place. In addition, it is worth noting that the phrase “pursue any related commercial activity” is different from that of “reasonably foresee the marketing of the product” of the Rome II Regulation.291 It is possible that the tortfeasor pursues related commercial activity in the place of the victim’s habitual residence, but that he or she cannot foresee the marketing of his or her products by another importer.292 Finally, in contrast to Article 5 of the Rome II Regulation, the Chinese special rule leaves little discretion to courts to strive for justice in individual cases, for article 45 is not subject to the common habitual residence exception or the closer connection exception.293 2. Infringement of Personality Rights Probably due to the complexity of conflicts law relating to violations of rights of personality, the Rome II Regulation refrains from providing any rule for this area and only directs the European Commission to make a study on the situation.294 In contrast, the Chinese legislature enacted a simple choice-of-law rule for the infringement of personality rights. Article 46 of the Law on Choice of Law provides: “Infringement of such personality rights as the right to one’s name, right to one’s image, right of reputation, or right of privacy, via the Internet or by other approaches, is governed by the law of the place where the victim has his or her habitual residence.”295 This provision is congruent with the choice-of-law rule for the content of personality rights, and both of them adopt habitual residence as the mere connecting factor.296 In comparison with article 139 of the Swiss PIL Act, the Chinese provision does not allow the victim to make a choice, even though the law of the victim’s habitual residence is not always favorable to the victim.297 In addition, the foreseeability of the tortfeasor is not a condition for the determination of the applicable law under the Chinese provision.298 Conclusion After a century of development, the conflicts codification in China has reached a new stage. The freestanding statute, the 2010 Law on Choice of Law, and conflicts rules scattered throughout other statutes, as well as several judicial interpretations, can be used to deal with most, if not all, conflicts issues in practice.299 But inconsistency and overlap between the conflicts rules in different statutes exist, and the goal to enact a comprehensive code of private international law in China has not been realized.300 Fortunately, the codification of the civil law was initiated again on April 10, 2015,301 and commentators have suggested China seize this historic opportunity to codify a new conflicts law statute that would be compatible with the civil code.302 Although some advanced conflicts principles and rules have been introduced in China, many conflicts rules are ambiguous and difficult to apply in practice.303 In the absence of detailed provisions to ensure that the current conflicts rules can be effectively applied, it is possible that they will remain law in the books only. In China, the vague conflicts rules depend on judicial interpretations to become specific and applicable.304 The first judicial interpretation for chapter one of the 2010 Choice of Laws was promulgated in 2012.305 However, more judicial interpretations for other chapters are still underway. The SPC needs to work much quicker to keep up with and resolve the challenges posed by judicial practice. In dealing with the “perennial tension between the goals of legal certainty and flexibility,”306 China’s legislature is becoming more skilled and confident. Compared with the conflicts rules prior to the 2010 Law on Choice of Law, the new rules have been enacted with more flexibility: the principle of the closest connection may be employed in all areas as a gap-filling principle; the principle of party autonomy has ascended to the status of a general principle of law, and parties enjoy more freedom in making a choice of law; nearly 80% of particular conflicts rules in the 2010 Law on Choice of Law are alternative-reference rules.307 On the other hand, in order to enhance legal certainty, renvoi is completely excluded, and only the lex fori shall apply to characterization and to contracts for foreign investment to be performed in China. However, legislation has moved to the extreme of flexibility in some areas, for instance, when the parties are granted the freedom of choice of law for rights in rem in movable property, while some conflicts rules are rather conservative in other areas, such as the conflicts rule for contracts for foreign investment to be performed in China. China’s conflicts law mainly tracks the civil law tradition. But some conflicts rules are borrowed from Anglo-American law, such as the conflicts rules for civil capacity of a juridical person and for intestate succession. Furthermore, the latest developments in the procedural infrastructure for applying foreign law are worth noting. Several years ago, a Chinese commentator suggested that the case law system should be introduced into China in the area of conflicts law and that a separate court system should be established in order to better deal with cases involving foreign elements.308 In 2010, the SPC formally established the regime of case guidance.309 The SPC determines and uniformly publishes guiding decisions which are typical, complicated, and have a wide influence on Chinese society.310 Although the decisions do not have the same function as that of case law in common law countries, the people’s courts at all levels are required to use the guiding decisions as a reference.311 This regime can be treated as a quasi case law system. In 2015, the SPC introduced another common law regime, that of circuit courts.312 Can the regimes of case guidance and circuit courts better cope with the challenges in the area of conflicts law and promote conflicts codification in China? The answer is unclear given the novelty of both in China Nevertheless, China has embarked on a journey toward that goal even though there is still a long way to go. I would like to express my gratitude to Peter Hay, Patrick J. Borchers, Xinqiang Sun, Peter McEleavy, Hanna Wei, and Yen-Chiang Chang for their insightful advice and comments. I am indebted to Mr. Tianyu Wang and Ms. Hao Zhou for their excellent research assistance. This research was sponsored by the National Fund for Philosophy and Social Science of the People’s Republic of China (PRC) (Project No.12 BFX 138), the Humanities and Social Sciences Planning Fund of the Ministry of Education of the PRC (Project No. 11 YJA 820091), and the Scholarship Program of the Max Planck Institute for Comparative and International Private Law. Footnotes 1. In this Article, China only refers to Mainland China. SeeGuoji Sifa (国际私法) [Private International Law] 341–45 (Depei Han (韩德培) & Xiao Yongping (肖永平) eds., 3d ed. 2014). 2. This Article only discusses choice-of-law rules. For the scope of conflicts law, see Peter Hay, Patrick J. Borchers & Symeon C. Symeonides, Conflict of Laws 3 (5th ed. 2010). 3. SeeSymeon C. Symeonides, Codifying Choice of Law Around the World: An International Comparative Analysis 1, 9–13 (2014). 4. SeePrivate International Law, supra note 1, at 54–55. 5. Zhonghua Renmin Gongheguo Shewai Minshi Guanxi Falü Shiyong Fa (中华人民共和国涉外民事关系法律适用法) [Law on Choice of Law for Foreign-Related Civil Relationships] (adopted by the Standing Comm. Nat’l People’s Cong., Oct. 28, 2010, effective Apr. 1, 2011), reprinted in 1 Chinese J. Comp. L. 185 (2013) [hereinafter 2010 Law on Choice of Law]. 6. SeeSymeonides, supra note 3, at 13; Guangjian Tu, China’s New Conflicts Code: General Issues and Selected Topics, 59 Am. J. Comp. L. 563, 564 (2011) (regarding the 2010 Law on Choice of Law as “the first legislation in the history of China to systematically codify conflict of laws rules”). 7. The three articles are articles 146 and 147 of the General Principles of the Civil Law, and article 36 of the Law of Succession. See 2010 Law on Choice of Law, supra note 5, art. 51. 8. Zhonghua Renmin Gongheguo Minfa Tongze (中华人民共和国民法通则) [General Principles of the Civil Law] (promulgated by the Standing Comm. Nat’l People’s Cong., Apr. 16, 1986, effective Jan. 1, 1987), reprinted inComparative Conflict of Laws: Conventions, Regulations, and Codes 316 (Peter Hay, Russell J. Weintraub & Patrick J. Borchers eds., 2009) [hereinafter General Principles of the Civil Law]. 9. See Mo Zhang, Codified Choice of Law in China: Rules, Processes and Theoretic Underpinnings, 37 N.C. J. Int’l L. & Com. Reg. 83, 86 (2011). 10. Zhonghua Renmin Gongheguo Jicheng Fa (中华人民共和国继承法) [Law of Succession] (promulgated by the Standing Comm. Nat’l People’s Cong., Apr. 10, 1985, effective Oct. 1, 1985), art. 36, CLI.1.2368(EN) (Lawinfochina). 11. SeeMorris: The Conflict of Laws 463 (David McClean & Verónica Ruiz Abou-Nigm eds., 8th ed. 2012). 12. Zhonghua Renmin Gongheguo Shewai Jingji Hetong Fa (中华人民共和国涉外经济合同法) [Foreign Economic Contract Law] (promulgated by the Standing Comm. Nat’l People’s Cong., Mar. 21, 1985, effective July 1, 1985) (repealed 1999), art. 5, CLI.1.2333(EN) (Lawinfochina). 13. Zhonghua Renmin Gongheguo Haishang Fa (中华人民共和国海商法) [Maritime Law] (promulgated by the Standing Comm. Nat’l People’s Cong., Nov. 7, 1992, effective July 1, 1993), arts. 268–76, CLI.1.6023(EN) (Lawinfochina). 14. Zhonghua Renmin Gongheguo Minyong Hangkong Fa (中华人民共和国民用航空法) [Civil Aviation Law] (promulgated by the Standing Comm. Nat’l People’s Cong., Oct. 30, 1995, effective Mar. 1, 1996), arts. 184–90, CLI.1.13135(EN) (Lawinfochina). 15. Zhonghua Renmin Gongheguo Piaoju Fa (中华人民共和国票据法) [Negotiable Instruments Law] (promulgated by the Standing Comm. Nat’l People’s Cong., May 10, 1995, effective Jan. 1, 1996), arts. 94–101, CLI.1.54991(EN) (Lawinfochina). 16. SeePrivate International Law, supra note 1, at 287–92. 17. Zhonghua Renmin Gongheguo Hetong Fa (中华人民共和国合同法) [Contract Law] (promulgated by the Standing Comm. Nat’l People’s Cong., May 15, 1999, effective Oct. 1, 1999), CLI.1.21651(EN) (Lawinfochina). For comments on the 1999 CL, see Mo Zhang, Freedom of Contract with Chinese Legal Characteristics: A Closer Look at China’s New Contract Law, 14 Temple Int’l & Comp. L.J. 237 (2000). 18. Waiguoren Zai Zhonghua Renmin Gongheguo Shouyang Zinü Dengji Banfa (外国人在中华人民共和国收养子女登记办法) [Measures for Registration of Adoption of Children by Foreigners in the People’s Republic of China] (promulgated by the St. Council, May 25, 1999, effective May 25, 1999), CLI.2.23061(EN) (Lawinfochina). 19. Article 150 of the 1986 General Principles of the Civil Law is obviously different from article 5 of the 2010 Law on Choice of Law, and the same is true of the relationship between article 148 of the 1986 General Principle of the Civil Law and article 29 of the 2010 Law on Choice of Law. 20. 2010 Law on Choice of Law, supra note 5, art. 2. 21. SeePrivate International Law, supra note 1, at 1–2. 22. SeeFali Xue (法理学) [Jurisprudence] 112 (Sun Guohua (孙国华) & Zhu Jingwen (朱景文) eds., 4th ed. 2015); Fali Xue (法理学) [Jurisprudence] 63 (Zhang Wenxian (张文显) ed., 4th ed. 2011). 23. Zhonghua Renmin Gongheguo Lifa Fa (中华人民共和国立法法) [Legislation Law] (promulgated by the Standing Comm. Nat’l People’s Cong., Mar. 15, 2000, effective July 1, 2000) (amended Mar. 15, 2015), CLI.1.245693(EN) (Lawinfochina). 24. Id. art. 104. 25. See Li Wei, Judicial Interpretation in China, 5 Willamette J. Int’l L. & Disp. Res. 87, 100 (1997). 26. William L. Prosser, Interstate Publication, 51 Mich. L. Rev. 959, 971 (1953). 27. SeeFriedrich K. Juenger, Choice of Law and Multistate Justice 1 (1993). 28. In a speech at the 2010 Annual Meeting of the Chinese Society of Private International Law, the Vice Dean of the Legislative Affairs Commission of the Standing Committee of National People’s Congress openly expressed such an idea. 29. Zuigao Renmin Fayuan Guanyu Shenli Shewai Minshi Huo Shangshi Hetong Jiufen Anjian Falü Shiyong Ruogan Wenti De Guiding (最高人民法院关于审理涉外民事或商事合同纠纷案件法律适用若干问题的规定) [Rules of the Supreme People’s Court on the Relevant Issues Concerning the Application of Law in Hearing Foreign-Related Contractual Dispute Cases in Civil and Commercial Matters] (promulgated by the Sup. People’s Ct., July 23, 2007, effective Aug. 8, 2007), reprinted in Comparative Conflict of Laws: Conventions, Regulations, and Codes, supra note 8, at 312. 30. SeePrivate International Law, supra note 1, at 24–25. 31. See Li, supra note 25, at 1–2 (commenting generally on the status and function of judicial interpretations). 32. See Symeon C. Symeonides, General Report, inPrivate International Law at the End of the 20th Century: Progress or Regress? 3, 7 (Symeon C. Symeonides ed., 1999). 33. See, e.g., Bi Ya Di Su Dong Ai Ma Er Deng (比亚迪诉东埃马尔等) [Francklin Beyard v. Don Mackyta & Ikenguissi Ayessacarl] (Nanjing Gulou District People’s Ct. May 20, 2014), CLI.C.17619688 (Chinalawinfo) (directly applying Chinese substantive law without considering that both the plaintiff and the defendants were from Africa and therefore article 46 of the 2010 Law on Choice of Law should apply); Chen Ming, Xu Yanfang, Chen Jie Su Shanhai Xiecheng Guoji Lüxingshe Youxian Gongsi Lüyou Hetong (陈明、徐炎芳、陈洁诉上海携程国际旅行社有限公司旅游合同) [Chen Ming, Xu Yanfang, Chen Jie v. Shanghai Ctrip Int’l Travel Agency, Co.] 2015 Sup. People’s Ct. Gaz. 43 (Shanghai No.1 Intermediate People’s Ct. 2014) (directly applying Chinese substantive law without considering part of performance of the travel contract occurred in Europe and therefore article 41 of the 2010 Law on Choice of Law should apply). 34. See Huang Jin et al., Chinese Judicial Practices in Private International Law: 2006, 8 Chinese J. Int’l L. 715, 725 (2009) (indicating that 96% of fifty cases applied Chinese law, and foreign law was “seldom invoked”). 35. See Tongchuan Xinguang Lüye Youxian Gongsi Su Zhongguo Yinhang (Xianggang) Youxian Gongsi (铜川鑫光铝业有限公司诉中国银行(香港)有限公司) [Tongchuan Xinguang Aluminum, Co. v. Bank of China (H.K.), Co.] (Guangdong High People’s Ct. May 8, 2004), CLI.C.32275 (Chinalawinfo). 36. Guowu Yuan Xinwen Bangong Shi (国务院新闻办公室) [The State Council Information Office of the People’s Republic of China], “Zhongguo Tese Shehui Zhuyi Falü Tixi” Bai Pi Shu (《中国特色社会主义法律体系》白皮书) [White Paper on the Socialist Legal System with Chinese Characteristics], CLI.WP.3907 (Chinalawinfo). 37. SeeHuo Zhengxin, Private International Law 77 (2d ed. 2015) (citing and translating Li Hongzhang’s lamenting words, who was then Prime Minister of the Qing Dynasty). 38. See Mo Zhang, The Socialist Legal System with Chinese Characteristics: China’s Discourse for the Rule of Law and a Bitter Experience, 24 Temple Int’l & Comp. L.J. 1, 27–32 (2010). 39. See, e.g., Private International Law, supra note 1, at 53; Ma Hanbao (马汉宝), Guoji Sifa: Zonglun Gelun (国际私法:总论各论) [Private International Law: General Part and Special Parts] 20–21 (3d ed. 2014). 40. Qisheng He, China’s Private International Law (1978–2008), 5 Frontiers L. China 188, 196 (2010). 41. See, e.g., James A.R. Nafziger, The Louisiana and Oregon Codifications of Choice-of-Law Rules in Context, 58 Am. J. Comp. L. 165, 173 (2010). 42. SeeQian Daqun (钱大群), Tanglü Yizhu (唐律译注) [Interpretations of and Comments on the Tang Code] 63 (1988). 43. SeeZhangsun Wuji (长孙无忌) et al., Tanglü Shuyi (唐律疏议) [A Commentary on the Tang Code] 133 (Liu Junwen (刘俊文) ed., Zhonghua Shuju (中华书局) [Zhonghua Book, Co.] 1983); The Tʼang Code 252 (Wallace Johnson trans., 1997); Dai Yanhui (戴炎辉), Tanglü Tonglun (唐律通论) [On the General Provisions of the Tang Code] 433 (2010). 44. Morris: The Conflict of Laws, supra note 11, at 2. 45. See Zhang, supra note 9, at 86. 46. SeeQian Daqun (钱大群), Tanglü Yu Tangdai Fazhi Kaobian (唐律与唐代法制考辨) [Research on the Tang Code and the Legal System of the Tang Dynasty] 37 (2009). 47. Martin Wolff, Private International Law 20 (1945). 48. Wang Tieya, International Law in China: Historical and Contemporary Perspectives, 221 Recueil des cours 195, 216–17 (1990). 49. SeeHuo, supra note 37, at 78. 50. See Ma, supra note 39, app. 3 at 375–77. 51. Huo, supra note 37, at 78–79. 52. See, e.g., Hessel E. Yntema, “Autonomy” in Choice of Law, 1 Am. J. Comp. L. 341, 346–47 (1952) (citing articles 23 and 26 of the 1918 Act). 53. Ruan Yicheng (阮毅成), Zhongguo Guoji Sifa Zhidu De Jianli (中国国际私法制度的建立) [The Establishment of China’s Private International Law System], inGuoji Sifa Lunwen Xuanji (国际私法论文选辑) [Selected Articles of Private International Law] 2 (Ma Hanbao (马汉宝) ed., 1984). 54. SeeMa, supra note 39, at 24. 55. Id. at 23. 56. Id. at 24. 57. See Mao Tse-Tung, Introducing a Co-operative, inSelected Readings from the Works of Mao Tse-Tung 403 (Editorial Comm. for Selected Readings from the Works of Mao Tse-Tung ed., 1967). 58. See Zhang, supra note 38, at 33–34. 59. See Zhang, supra note 9, at 86. 60. See Tung-pi Chen, Private International Law of the People’s Republic of China: An Overview, 35 Am. J. Comp. L. 445, 445 (1987). 61. See Zhang, supra note 38, at 34. 62. See Chen, supra note 60, at 446–47. 63. SeeHuang Jin (黄进), Guoji Sifa (国际私法) [Private International Law] 164 (1999). 64. Guanyu Guanche Zhixing “Zhonghua Renmin Gongheguo Minfa Tongze” Ruogan Wenti De Yijian (Shixing) (关于贯彻执行《中华人民共和国民法通则》若干问题的意见(试行)) [Opinions of the Supreme People’s Court on Several Issues Concerning the Implementation of the General Principles of the Civil Law (for Trial Implementation)] (promulgated by the Sup. People’s Ct., Apr. 2, 1988, effective Apr. 2, 1988), reprinted inComparative Conflict of Laws: Conventions, Regulations, and Codes, supra note 8, at 317 [hereinafter 1988 Opinions]. 65. See supra text accompanying note 17. 66. SeeHuang, supra note 63, at 165. 67. See Chen Weizuo, The Necessity of Codification of China’s Private International Law and Arguments for a Statute on the Application of Laws as the Legislative Model, 1 Tsinghua China L. Rev. 1, 12–14 (2009). 68. Guo Yujun (郭玉军) & Xu Jintang (徐锦堂), Cong Tongji Fenxi Kan Woguo Shewai Minshang Shi Shenpan Shijian De Fazhan (从统计分析看我国涉外民商事审判实践的发展) [A Statistical Analysis of Judicial Practices on Foreign-Related Cases in Civil and Commercial Matters in China], 11 Zhongguo Guoji Sifa Yu Bijiao Fa Niankan (中国国际私法与比较法年刊) [Chinese Y.B. Priv. Int’l & Comp. L.] 122, 124 n.2 (2008). 69. See generally Weidong Zhu, China’s Codification of the Conflict of Laws: Publication of a Draft Text, 3 J. Priv. Int’l L. 283 (2007). 70. Id. at 285. 71. Zuigao Renmin Fayuan Guanyu Shenli Shewai Minshi Huo Shangshi Hetong Jiufen Anjian Falü Shiyong Ruogan Wenti De Guiding (最高人民法院关于审理涉外民事或商事合同纠纷案件法律适用若干问题的规定) [Rules of the Supreme People’s Court on the Relevant Issues Concerning the Application of Law in Hearing Foreign-Related Contractual Dispute Cases in Civil and Commercial Matters] (promulgated by the Sup. People’s Ct., July 23, 2007, effective Aug. 8, 2007), reprinted in Comparative Conflict of Laws: Conventions, Regulations, and Codes, supra note 8, at 312. 72. Zhengxin Huo, An Imperfect Improvement: The New Conflict of Laws Act of the People’s Republic of China, 60 Int’l & Comp. L.Q. 1065, 1068 (2011). 73. Id. at 1069. 74. See Weidi Long, The First Choice-of-Law Act of China’s Mainland: An Overview, 2012 Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 273, 274. 75. See Huo, supra note 72, at 1069. 76. See Hu Kangsheng (胡康生), Guanyu Zhonghua Renmin Gongheguo Shewai Minshi Guanxi Falü Shiyong Fa Cao’an Zhuyao Wenti De Huibao (关于《中华人民共和国涉外民事关系法律适用法(草案)》主要问题的汇报) [Report on Main Questions About the Law on Choice of Law for Foreign-Related Civil Relationships (Draft)], 2010 Standing Comm. Nat’l People’s Cong. Gaz. 643, 644. 77. Zuigao Renmin Fayuan Guanyu Shiyong Zhonghua Renmin Gongheguo Shewai Minshi Guanxi Falü Shiyong Fa Ruogan Wenti De Jieshi Yi (最高人民法院关于适用《中华人民共和国涉外民事关系法律适用法》若干问题的解释(一)) [Interpretation I by the Supreme People’s Court on Issues Concerning the Application of the Law on Choice of Law for Foreign-Related Civil Relationships] (promulgated by the Sup. People’s Ct., Dec. 28, 2012, effective Jan. 7, 2013), CLI.3.192329(EN) (Lawinfochina) [hereinafter 2012 Judicial Interpretation I]. 78. See Long, supra 74, at 274. 79. See Huo, supra 72, at 1068–69. 80. See Hu, supra note 76, at 643–44. 81. 2010 Law on Choice of Law, supra note 5, art. 3 (translated by author). 82. See, e.g., Zhonghua Renmin Gongheguo Hetong Fa (中华人民共和国合同法) [Contract Law] (promulgated by the Standing Comm. Nat’l People’s Cong., May 15, 1999, effective Oct. 1, 1999), art. 126, CLI.1.21651(EN) (Lawinfochina). 83. See Symeonides, supra note 32, at 40. 84. 2012 Judicial Interpretation I, supra note 77, art. 8(2). 85. Id. art. 9. 86. Id. art. 7. 87. Id. art. 8(1). 88. The word “unrestricted” here and in the following text of this paragraph means that the law chosen by the parties is not limited. 89. See 2010 Law on Choice of Law, supra note 5. 90. See Wang Shengming (王胜明), “Shewai Minshi Guanxi Falü Shiyong Fa” Zhidao Sixiang (《涉外民事法律关系适用法》指导思想) [Guiding Principles of the Act of Application of Law for Foreign Relations], 1 Zhengfa Luntan (政法论坛) [Trib. Pol. Sci. & L.] 2, 2 (2012) (the author was then the Vice Dean of the Legal Affairs Commission of the NPC Standing Committee) (translated by author). 91. SeeGuoji Sifa Zhuanlun (国际私法专论) [A Treatise on Issues of Private International Law] 19 (Depei Han (韩德培) ed., 2004). 92. See Guo & Xu, supra note 68, at 141. 93. See 2010 Law on Choice of Law, supra note 5. 94. Bundesgesetz über das Internationale Privatrecht [IPRG] [Federal Law on Private International Law] Dec. 18, 1987, SR 291, art. 104. 95. See, e.g., Song Xiao (宋晓), Yisi Zizhi Yu Wuquan Chongtu Fa (意思自治与物权冲突法) [Party Autonomy and Conflicts Law in Real Rights], 1 Huanqiu Falü Pinglun (环球法律评论) [Global L. Rev.] 77 (2012). 96. Zhonghua Renmin Gongheguo Shewai Jingji Hetong Fa (中华人民共和国涉外经济合同法) [Foreign Economic Contract Law] (promulgated by the Standing Comm. Nat’l People’s Cong., Mar. 21, 1985, effective July 1, 1985), art. 5, CLI.1.2333(EN) (Lawinfochina). 97. General Principles of the Civil Law, supra note 8, art. 148. 98. 1988 Opinions, supra note 64, arts. 182–83, 185, 192. 99. See Guo & Xu, supra note 68, at 129. 100. 2010 Law on Choice of Law, supra note 5, art. 2(2). 101. SeeDu Tao (杜涛), Guoji Sifa De Xiandai Hua Jincheng: Zhongwai Guoji Sifa Gaige Bijiao Yanjiu (国际私法的现代化进程:中外国际私法改革比较研究) [The Development of Modern Private International Law: A Comparative Study on Sino-Foreign Reforms of Private International Law] 327 (2007). 102. See Long, supra note 74, at 275. 103. SeeZhonghua Renmin Gongheguo Shewai Minshi Guanxi Falü Shiyong Fa Jianyi Gao Ji Shuoming (中华人民共和国涉外民事关系法律适用法建议稿及说明) [The Proposed Draft of and Comments on the Law on Choice of Law for Foreign-Related Civil Relationships] 11–12 (Huang Jin (黄进) ed., 2011) [hereinafter Proposed Draft of the Law]. 104. Bundesgesetz über das Internationale Privatrecht [IPRG] [Federal Law on Private International Law] Dec. 18, 1987, SR 291, art. 15. 105. See Symeonides, supra note 32, at 36–37. 106. SeeProposed Draft of the Law, supra note 103, at 133. 107. SeePrivate International Law, supra note 1, at 96. 108. See Huang Jin et al., supra note 34, at 725. 109. See Long, supra note 74, at 275. 110. SeeMa, supra note 39, app. 3 at 375–77. 111. Morris: The Conflict of Laws, supra note 11, at 45 (citing Mancini’s argument). 112. Id. at 46. 113. General Principles of the Civil Law, supra note 8, art. 149. 114. SeeHay, Borchers & Symeonides, supra note 2, at 302–04. 115. SeeDicey, Morris & Collins: The Conflict of Laws 144 (C.G.J. Morse et al. eds., 15th ed. 2012). 116. Zhang, supra note 9, at 132. 117. SeeDu Tao (杜涛), Shewai Minshi Guanxi Falü Shiyong Fa Shiping (涉外民事关系法律适用法释评) [Comments on the Law of the People’s Republic of China on Choice of Law for Foreign-Related Civil Relationships] 128 (2011). 118. See Guo & Xu, supra note 68, at 124–25. 119. See 2010 Law on Choice of Law, supra note 5. 120. SeeHay, Borchers & Symeonides, supra note 2, at 299. 121. Id. at 300. 122. 2012 Judicial Interpretation I, supra note 77, art. 15 (translated by author). 123. 1988 Opinions, supra note 64, art. 9 (translated by author). 124. See Zhengxin Huo, Two Steps Forward, One Step Back: A Commentary on the Judicial Interpretation on the Private International Law Act of China, 43 H.K.L.J. 685, 707–08 (2013). 125. SeeDu, supra note 117, at 145–46. 126. 1988 Opinions, supra note 64, art. 184 (translated by author). 127. 2010 Law on Choice of Law, supra note 5, art. 14. 128. SeeDu, supra note 117, at 112–13. 129. General Principles of the Civil Law, supra note 8, art. 142(1) (emphasis added). 130. 1988 Opinions, supra note 64, art. 178(2) (emphasis added). 131. 2010 Law on Choice of Law, supra note 5, art. 2(1). 132. SeeDu, supra note 117, at 113. 133. Id. at 108. 134. See, e.g., Xu Peng (徐鹏), Chongtu Guifan Renyi Xing Shiyong Yanjiu (冲突规范任意性适用研究) [A Study on the Facultative Application of Conflicts Rules] 169–71 (2010). 135. Zuigao Renmin Fayuan Guanyu Shiyong “Shewai Jingji Hetong Fa” Ruogan Wenti De Jieda (最高人民法院关于适用《涉外经济合同法》若干问题的解答) [Response of the Supreme People’s Court Concerning the Application of the Foreign Economic Contract Law] (promulgated by the Sup. People’s Ct., Oct. 19, 1987, effective Oct. 19, 1987) (repealed July 25, 2000), CLI.3.3530(EN) (Lawinfochina). 136. 1988 Opinions, supra note 64, art. 193. 137. See Jiao Yan (焦燕), Woguo Waiguo Fa Chaming Xingui Zhi Jianshi——Ping “Shewai Minshi Guanxi Falü Shiyong Fa” Di Shi Tiao (我国外国法查明新规之检视——评《涉外民事关系法律适用法》第10条) [A Review of the New Rule on the Ascertainment of Foreign Law in China: Focus on Article 10 of the Law on Choice of Law for Foreign-Related Civil Relationships], 2 Qinghua Faxue (清华法学) [Tsinghua L.J.] 163, 165 (2013). 138. Zuigao Renmin Fayuan Guanyu Yinfa “Di Er Ci Quanguo Shewai Shangshi Haishi Shenpan Gongzuo Huiyi Jiyao” De Tongzhi (最高人民法院关于印发《第二次全国涉外商事海事审判工作会议纪要》的通知) [Notice of the Supreme People’s Court on Issuing the Summary of the Second National Meeting on Trial of Commercial and Maritime Cases with Foreign Elements] (promulgated by the Sup. People’s Ct., Dec. 26, 2005, effective Dec. 26, 2005), art. 51, CLI.3.78927 (Chinalawinfo). 139. Id. 140. Zuigao Renmin Fayuan Guanyu Shenli Shewai Minshi Huo Shangshi Hetong Jiufen Anjian Falü Shiyong Ruogan Wenti De Guiding (最高人民法院关于审理涉外民事或商事合同纠纷案件法律适用若干问题的规定) [Rules of the Supreme People’s Court on the Relevant Issues Concerning the Application of Law in Hearing Foreign-Related Contractual Dispute Cases in Civil and Commercial Matters] (promulgated by the Sup. People’s Ct., July 23, 2007, effective Aug. 8, 2007), art. 9(1)(2), reprinted in Comparative Conflict of Laws: Conventions, Regulations, and Codes, supra note 8, at 312. 141. 2010 Law on Choice of Law, supra note 5, art. 10(1) (translated by author). 142. See Lin Yanping (林燕萍) & Huang Yanru (黄艳如), Waiguo Fa Weihe Nanyi Chaming——Jiyu “Shewai Minshi Guanxi Falü Shiyong Fa” Di Shi Tiao De Shizheng Fenxi (外国法为何难以查明——基于《涉外民事关系法律适用法》第10条的实证分析) [Why Foreign Law Is Difficult to Ascertain: A Positive Analysis of Article 10 of the Law on Choice of Law for Foreign-Related Civil Relationships], 10 Faxue (法学) [Law Sci.] 116, 121 (2014). 143. See, e.g., Jiao, supra note 137, at 174. 144. 2012 Judicial Interpretation I, supra note 77, art. 17 (translated by author). 145. Zuigao Renmin Fayuan Guanyu Shiyong “Shewai Jingji Hetong Fa” Ruogan Wenti De Jieda (最高人民法院关于适用《涉外经济合同法》若干问题的解答) [Response of the Supreme People’s Court Concerning the Application of the Foreign Economic Contract Law] (promulgated by the Sup. People’s Ct., Oct. 19, 1987, effective Oct. 19, 1987) (repealed July 25, 2000), art. 2(11), sent. 2, CLI.3.3530(EN) (Lawinfochina); 1988 Opinions, supra note 64, art. 193, sent. 2; Rules of the Supreme People’s Court on the Relevant Issues Concerning the Application of Law in Hearing Foreign-Related Contractual Dispute Cases in Civil and Commercial Matters, July 23, 2007, art. 9(3); 2010 Law on Choice of Law, supra note 5, art. 10(2). 146. See, e.g., Huo, supra note 72, at 1076. 147. See, e.g., Tongchuan Xinguang Lüye Youxian Gongsi Su Zhongguo Yinhang (Xianggang) Youxian Gongsi (铜川鑫光铝业有限公司诉中国银行(香港)有限公司) [Tongchuan Xinguang Aluminum, Co. v. Bank of China (H.K.), Co.] (Guangdong High People’s Ct. May 8, 2004), CLI.C.32275 (Chinalawinfo). 148. See, e.g., Guoji Sifa (国际私法) [Private International Law] 39–42 (Li Shuangyuan (李双元) ed., 2000). 149. 2010 Law on Choice of Law, supra note 5, art. 4. 150. SeeBundesgesetz über das Internationale Privatrecht [IPRG] [Federal Law on Private International Law] Dec. 18, 1987, SR 291, arts. 18–19. 151. See Commission Regulation 593/2008 of the European Parliament and of the Council of 17 June 2008 on the Law Applicable to Contractual Obligations (Rome I), 2008 O.J. (L 177) 6, 10, 13 [hereinafter Rome I Regulation]. 152. Long, supra note 74, at 276. 153. SeeJuenger, supra note 27, at 81. 154. Frank Benedict Vischer, General Course on Private International Law, 232 Recueil des cours 9, 157 (1992-I). 155. Juenger, supra note 27, at 82. 156. 2012 Judicial Interpretation I, supra note 77, art. 10 (translated by author). 157. 2010 Law on Choice of Law, supra note 5, art. 43. 158. See Vischer, supra note 154, at 159. 159. Huang Jin (黄进), Lian Junya (连俊雅) & Du Huanfang (杜焕芳), 2014 Nian Zhongguo Guoji Sifa Shijian Shuping (2014年中国国际私法司法实践述评) [Chinese Judicial Practices in Private International Law: 2014], 18 Zhongguo Guoji Sifa Yu Bijiao Fa Niankan (中国国际私法与比较法年刊) [Chinese Y.B. Priv. Int’l & Comp. L.] 265, 306 (2016). 160. 2010 Law on Choice of Law, supra note 5, art. 8. 161. See Zhu, supra note 69, at 288. 162. Article 9, sentence 2 of the proposed draft by the CSPIL reads: “In the event that the civil relation with foreign elements cannot be properly characterized under the law of the forum, it may be determined by reference to the applicable law.” Proposed Draft of the Law, supra note 103, at 29 (translated by author). 163. Cf.Dicey, Morris & Collins: The Conflict of Laws, supra note 115, at 41. 164. See, e.g., Huo, supra note 72, at 1075. 165. SeeDu, supra note 117, at 96. 166. SeeHay, Borchers & Symeonides, supra note 2, at 148–49. 167. Article 4 provides: “Whenever the national law of a person should apply under the Act and his or her national law refers to the law of China, the law of China shall apply.” Ma, supra note 39, app. 3 at 375 (citing the 1918 Act) (translated by author). 168. See, e.g., Tang Jixiang (唐纪翔), Zhongguo Guoji Sifa Lun (中国国际私法论) [A Treatise on Chinese Private International Law] 64–67 (1934); Depei Han (韩德培), Guoji Sifa (国际私法) [Private International Law] 125–27 (2000); Private International Law, supra note 148, at 224–25. 169. See, e.g., Depei, supra note 168, at 127. 170. Proposed Draft of the Law, supra note 103, at 12 (translated by author). 171. See Zhu, supra note 69, at 290. 172. Russell J. Weintraub, The Future of Choice of Law for Torts: What Principles Should Be Preferred?, 41 Law & Contemp. Probs. 146, 148 (1977) (commenting on the conflicts law decisions of the New York Court of Appeals). 173. See, e.g., Dicey, Morris & Collins: The Conflict of Laws, supra note 115, at 92–95. 174. See 2010 Law on Choice of Law, supra note 5, art. 9. 175. Liu Tiezheng (刘铁铮), Guoji Sifa Luncong (国际私法论丛) [Selected Articles on Private International Law] 209–12 (1991). 176. See Zhao Xichen (赵喜臣) & Xu Qingkun (许庆坤), Guanyu Fanzhi Zhidu De Fansi (关于反致制度的反思) [Some Reflections on Renvoi], 4 Zhongguo Guoji Sifa Yu Bijiao Fa Niankan (中国国际私法与比较法年刊) [Chinese Y.B. Priv. Int’l & Comp. L.] 119, 124–34 (2001). 177. Morris: The Conflict of Laws, supra note 11, at 381 (citing Jackson’s expression). 178. Ma, supra note 39, app. 3 at 375 (translated by author). 179. See General Principles of the Civil Law, supra note 8, art. 150, which provides: “The application of foreign law or international usages under the provisions of this chapter shall not be incompatible with the social and public interests of the People’s Republic of China.” (translated by author). 180. SeeDicey, Morris & Collins: The Conflict of Laws, supra note 115, at 101. 181. See, e.g., Xiao Yongping (肖永平), Xiao Yongping Lun Chongtu Fa (肖永平论冲突法) [Xiao Yongping on Conflict of Laws] 105 (2002). 182. Id. 183. Id. 184. 2010 Law on Choice of Law, supra note 5, art. 5 (translated by author). 185. 1988 Opinions, supra note 64, art. 194 (translated by author). 186. See, e.g., Xiao, supra note 181, at 112–20. 187. 2012 Judicial Interpretation I, supra note 77, art. 11 (translated by author). 188. See, e.g., Xu Qingkun (许庆坤), Guoji Sifa Zhong De Falü Guibi Zhidu: Zaisheng Haishi Xiaowang (国际私法中的法律规避制度:再生还是消亡) [The Doctrine of Evasion of Law in Private International Law: Rebirth or Being Discarded?], 5 Faxue Yanjiu (法学研究) [Chinese L.J.] 195, 205–08 (2013). 189. Guo & Xu, supra note 68, at 125. 190. SeeDu, supra note 117, at 266; Huo, supra note 72, at 1085. 191. See supra text accompanying notes 17–18. 192. See supra text accompanying note 21. 193. 2012 Judicial Interpretation I, supra note 77, art. 3. 194. 2010 Law on Choice of Law, supra note 5, art. 41. 195. 2012 Judicial Interpretation I, supra note 77, art. 3. 196. See supra text accompanying note 22. 197. Article 3(2) of the 2012 Judicial Interpretation I states that where any other statute provides the applicable law for a civil relation with foreign elements and the 2010 Law on Choice of Law is silent on the matter, the provision of the other statute shall apply. See 2012 Judicial Interpretation I, supra note 77, art. 3. 198. Zuigao Renmin Fayuan Yuyi Feizhi De 1999 Niandi Yiqian Fabu De Youguan Sifa Jieshi Mulu (Di San Pi) (最高人民法院予以废止的1999年底以前发布的有关司法解释目录(第三批)) [The List of Abolished Judicial Interpretations Issued Before the End of 1999 by the Supreme People’s Court (III)] (promulgated by the Supreme People’s Ct., July 13, 2000, effective July 25, 2000), CLI.3.30922 (Chinalawinfo). 199. See Private International Law, supra note 1, at 207 (2d ed. 2007). 200. See, e.g., Faguo Dafei Lunchuan Youxian Gongsi (CMACGM) Su Hunan Sheng Jishu Jinchukou Gufen Youxian Gongsi (法国达飞轮船有限公司诉湖南省技术进出口股份有限公司) [CMACGM, Fr. v. Tech. Imp. & Exp., Co., Hunan Prov.] (Hubei High People’s Ct. Aug. 12, 2004), CLI.C. 24167 (Chinalawinfo). 201. Zuigao Renmin Fayuan Guanyu Feizhi 1997 Nian Qi Yue Yi Ri Zhi 2011 Nian Shi Er Yue San Shi Yi Ri Qijian Fabu De Bufen Sifa Jieshi He Sifa Jieshi Xingzhi Wenjian (Di Shi Pi) De Jueding (最高人民法院关于废止1997年7月1日至2011年12月31日期间发布的部分司法解释和司法解释性质文件(第十批)的决定) [Decision of the Supreme People’s Court on the Abolishment of Some Judicial Interpretations Issued Between July 1, 1997, and December 31, 2011 (X)] (promulgated by the Sup. People’s Ct., Feb. 26, 2013, effective Apr. 8, 2013), CLI.3.198871(EN) (Lawinfochina). 202. The author found seven decisions after searching the database of cases available on Beida Fabao (北大法宝) [Peking Univ. Law Database], www.pkulaw.cn. The 2007 Rules was expressly applied in all of the decisions, even for cases whose facts occurred after April 8, 2013. See, e.g., Xunbang Keji Guoji Youxian Gongsi Su Shenzhen Shi Guoxun Keji Youxian Gongsi (讯邦科技国际有限公司诉深圳市国讯科技有限公司) [Xunbang Tech. & Int’l, Co. v. Shenzhen Guoxun Tech., Co.] (People’s Ct. of Futian District of Shenzhen Mar. 1, 2014), CLI.C. 3403211 (Chinalawinfo). 203. 2010 Law on Choice of Law, supra note 5, art. 41 (translated by author). 204. Id. art. 1 (stating that choice-of-law rules only apply to civil relations with foreign elements); Private International Law, supra note 1, at 3–4. 205. 2012 Judicial Interpretation I, supra note 77, art. 1 (translated by author). 206. SeePrivate International Law, supra note 1, at 3. 207. Cf. 1988 Opinions, supra note 64, art. 178(1). 208. See supra text accompanying note 119. 209. At the 2015 Annual Meeting of the Chinese Society of Private International Law, one chief judge argued that, where two companies incorporated in Mainland China conclude a contract and the shareholders of one of the companies are from Hong Kong, the investment from Hong Kong might be covered by “other circumstances” even though all other factors relating to the contract are situated in Mainland China. See Liu Guixiang, Chief Judge, the First Circuit Tribunal of the Sup. People’s Ct., Keynote Address at the 2015 Annual Meeting of the Chinese Society of Private International Law (Nov. 14, 2015). 210. Ma, supra note 39, app. 3 at 377 (translated by author). 211. SeePrivate International Law, supra note 1, at 207. 212. See supra text accompanying notes 84–87. Cf. Zuigao Renmin Fayuan Guanyu Shenli Shewai Minshi Huo Shangshi Hetong Jiufen Anjian Falü Shiyong Ruogan Wenti De Guiding (最高人民法院关于审理涉外民事或商事合同纠纷案件法律适用若干问题的规定) [Rules of the Supreme People’s Court on the Relevant Issues Concerning the Application of Law in Hearing Foreign-Related Contractual Dispute Cases in Civil and Commercial Matters] (promulgated by the Sup. People’s Ct., July 23, 2007, effective Aug. 8, 2007), art. 4, reprinted in Comparative Conflict of Laws: Conventions, Regulations, and Codes, supra note 8, at 312. 213. 2010 Law on Choice of Law, supra note 5, art. 41. 214. 2012 Judicial Interpretation I, supra note 77, art. 9; Du, supra note 117, at 273–74. 215. 2010 Law on Choice of Law, supra note 5, art. 12. 216. Id. art. 14. 217. Id. art. 5. 218. Id. art. 4. 219. 2012 Judicial Interpretation I, supra note 77, art. 11. 220. Zhonghua Renmin Gongheguo Hetong Fa (中华人民共和国合同法) [Contract Law] (promulgated by the Standing Comm. Nat’l People’s Cong., May 15, 1999, effective Oct. 1, 1999), art. 126, CLI.1.21651(EN) (Lawinfochina). 221. Zhonghua Renmin Gongheguo Shewai Jingji Hetong Fa (中华人民共和国涉外经济合同法) [Foreign Economic Contract Law] (promulgated by the Standing Comm. Nat’l People’s Cong., Mar. 21, 1985, effective July 1, 1985), art. 5(2), CLI.1.2333(EN) (Lawinfochina). 222. Contract Law, May 15, 1999, art. 126 (translated by author). 223. Rules of the Supreme People’s Court on the Relevant Issues Concerning the Application of Law in Hearing Foreign-Related Contractual Dispute Cases in Civil and Commercial Matters, July 23, 2007, art. 8. 224. Zhonghua Renmin Gongheguo Minshi Susong Fa (中华人民共和国民事诉讼法) [Civil Procedure Law] (promulgated by the Standing Comm. Nat’l People’s Cong., Apr. 9, 1991, effective Apr. 9, 1991), art. 266, CLI.1.5110(EN) (Lawinfochina). 225. SeeYao Meizhen (姚梅镇), Waishang Touzi Qiye Fa Jiaocheng (外商投资企业法教程) [Textbook of Foreign Investment Enterprise Law] 32, 232–33 (2d ed. 1994). 226. SeeHe Qisheng (何其生), Bijiao Fa Shiye Xia De Guoji Minshi Susong (比较法视野下的国际民事诉讼) [International Civil Litigation in Comparative Perspective] 128–30 (2015) (arguing against exclusive jurisdiction over foreign investment enterprise contracts performed in China). 227. Albert A. Ehrenzweig, The Second Conflicts Restatement: A Last Appeal for Its Withdrawal, 113 Pa. L. Rev. 1230, 1241 (1964). 228. Juenger, supra note 27, at 58 (citing David’s argument). 229. See Kurt Lipstein, Characteristic Performance—A New Concept in the Conflict of Laws in Matters of Contract for the EEC, 3 Nw. J. Int’l L. & Bus. 402, 405 (1982). 230. Zuigao Renmin Fayuan Guanyu Shiyong “Shewai Jingji Hetong Fa” Ruogan Wenti De Jieda (最高人民法院关于适用《涉外经济合同法》若干问题的解答) [Response of the Supreme People’s Court to Certain Questions Concerning the Application of the Foreign Economic Contract Law] (promulgated by the Sup. People’s Ct., Oct. 19, 1987, effective Oct. 19, 1987) (repealed July 25, 2000), art. 2(6), CLI.3.3530(EN) (Lawinfochina). 231. Id. 232. Rules of the Supreme People’s Court on the Relevant Issues Concerning the Application of Law in Hearing Foreign-Related Contractual Dispute Cases in Civil and Commercial Matters, July 23, 2007, art. 5. 233. 2010 Law on Choice of Law, supra note 5, art. 41. 234. Id. 235. I found 486 contract cases decided in 2014 in which the parties did not make a choice of law. Of those cases, the principle of the closest connection was employed in 250, the principle of characteristic performance was employed in 24, and both of them were employed in 3 decisions. Article 41 of the 2010 Law on Choice of Law was generally referred to in 202 decisions; seven decisions only vaguely mentioned the 2010 Law on Choice of Law but did not apply any particular rule. The case decisions are available at Zhongguo Caipan Wenshu Wang (中国裁判文书网) [China Judgments Online], http://wenshu.court.gov.cn (last visited Nov. 6, 2017). 236. See, e.g., Zhang Lizhen (张丽珍), Tezheng Xing Lüxing Lilun Yu Zui Miqie Lianxi Yuanze Guanxi Zhi Zai Shuli——Jianyi “Shewai Minshi Guanxi Falü Shiyong Fa” Di Si Shi Yi Tiao (特征性履行理论与最密切联系原则关系之再梳理——兼议《涉外民事关系法律适用法》第41条) [Revisiting the Relationship Between the Doctrine of Characteristic Performance and the Principle of the Closest Connection—With Comments on Article 41 of the Law on Choice of Law for Foreign-Related Civil Relationships], 15 Zhongguo Guoji Sifa Yu Bijiao Fa Niankan (中国国际私法与比较法年刊) [Chinese Y.B. Priv. Int’l & Comp. L.] 98, 120–23 (2013). 237. See, e.g., Xu Qingkun (许庆坤), Xiaofeizhe Baohu De Chongtu Fa Zhi Wei (消费者保护的冲突法之维) [The Conflicts Method to Protect Consumers], 6 Zhengzhi Yu Falü (政治与法律) [Pol. Sci. & L.] 74, 74–78 (2006); Xiao Yongping (肖永平), Guoji Sifa Yuanli (国际私法原理) [The Basics of Private International Law] 184–85 (2003). 238. 2010 Law on Choice of Law, supra note 5, art. 42 (translated by author). 239. Proposed Draft of the Law, supra note 103, at 21, art. 56. 240. See “Zhonghua Renmin Gonghe Guo Shewai Minshi Guanxi Falü Shiyong Fa” Shiyi Yu Fenxi (《中华人民共和国涉外民事关系法律适用法》释义与分析) [Law on Choice of Law for Foreign-Related Civil Relationships: Interpretations and Analysis] 230 (Huang Jin (黄进) & Jiang Rujiao (姜茹娇) eds., 2011). 241. Id. at 235. 242. 2010 Law on Choice of Law, supra note 5, art. 41. 243. Cf. Rome I Regulation, supra note 151, art. 6(1). 244. Zhonghua Renmin Gongheguo Xiaofei Zhe Quanyi Baohu Fa (中华人民共和国消费者权益保护法) [Law on Protection of Consumer Rights and Interests] (promulgated by the Standing Comm. Nat’l People’s Cong., Oct. 31, 1993, effective Jan. 1, 1994), art. 2, CLI.1.6384(EN) (Lawinfochina) (defining the consumer as a person who purchases and uses goods or receives services for daily consumption). 245. Cf. Rome I Regulation, supra note 151, art. 6(4), recital 32. 246. Id. recital 23. 247. See Zhu, supra note 69, at 294–96; Proposed Draft of the Law, supra note 103, at 123–32. 248. Proposed Draft of the Law, supra note 103, at 21. 249. Id. art. 57. 250. 2010 Law on Choice of Law, supra note 5, art. 43 (translated by author). 251. Cf. article 57 of the proposed draft of the CSPIL: Proposed Draft of the Law, supra note 103, at 21. 252. See Symeonides, supra note 32, at 60. 253. Cf. Rome I Regulation, supra note 151, art. 8. 254. SeeWang Quanxing (王全兴), Laodong Fa (劳动法) [Employment Law] 208 (3d ed. 2008). 255. SeeDicey, Morris & Collins: The Conflict of Laws, supra note 115, at 2025. 256. Cf. Rome I Regulation, supra note 151, art. 8(2) (qualifying the place of work as “the country in which or, failing that, from which the employee habitually carries out his work in performance of the contract”). 257. Cf.id. art. 8(4). 258. See Li Jing, China’s New Labor Contract Law and Protection of Workers, 32 Fordham Int’l L.J. 1083, 1121–22 (2008). 259. 2010 Law on Choice of Law, supra note 5, art. 43; Law on Choice of Law for Foreign-Related Civil Relationships: Interpretations and Analysis, supra note 240, at 237. 260. General Principles of the Civil Law, supra note 8, art. 146. 261. SeeMa, supra note 39, app. 3 at 377. 262. SeeDicey, Morris & Collins: The Conflict of Laws, supra note 115, at 2206. 263. See supra text accompanying notes 19–20. 264. 2010 Law on Choice of Law, supra note 5, art. 44 (translated by author). 265. Commission Regulation 264/2007 of the European Parliament and of the Council of 11 July 2007 on the Law Applicable to Non-contractual Obligations (Rome II), 2007 O.J. (L 199) 40, 44 [hereinafter Rome II Regulation]. 266. See supra text accompanying notes 260–61, 265. 267. SeeSymeonides, supra note 3, at 59. 268. 1988 Opinions, supra note 64, art. 187. 269. See supra text accompanying notes 262. 270. See, e.g., Xu Qingkun (许庆坤), Yiban Qinquan Chongtu Fa Zhengyi Quxiang Yu Woguo Sifa Jieshi De Zhiding (一般侵权冲突法正义取向与我国司法解释的制订) [On the Trend of Justice in Conflicts Law for Torts in General and the Formulation of China’s Judicial Interpretation], 3 Faxue Jia (法学家) [The Jurist] 128, 137 (2013); Guoyong Zou, The Evolution and the Latest Developments of Chinese Conflicts Law for Torts, 9 Frontiers L. China 582, 588 (2014). 271. Rome II Regulation, supra note 265, art. 4. 272. 2010 Law on Choice of Law, supra note 5, art. 44. 273. Id. 274. Rome II Regulation, supra note 265, art. 17. 275. SeeHay, Borchers & Symeonides, supra note 2, at 876. 276. Id. at 875, 878. 277. Symeon C. Symeonides, Problems and Dilemmas in Codifying Choice of Law for Torts: The Louisiana Experience in Comparative Perspective, 38 Am. J. Comp. L. 431, 441 (1990). 278. See, e.g., Xu, supra note 270, at 137–38. 279. See, e.g., Jin Ning (金宁), Guanyu Qinquan Xingwei Falü Xuanze Yuanze (关于侵权行为法律选择原则) [The Choice-of Law Principles for Torts], 3 Anhui Daxue Xuebao (Zhexue Shehui Kexue Ban) (安徽大学学报(哲学社会科学版)) [Anhui U. J. (Phil. & Soc. Sci. Edition)] 70, 74 (1989). 280. SeeComparative Conflict of Laws: Conventions, Regulations, and Codes, supra note 8, at 355. 281. SeeProposed Draft of the Law, supra note 103, at 131. 282. Id. at 136. 283. 2010 Law on Choice of Law, supra note 5, art. 44. 284. Id. 285. SeeSymeonides, supra note 3, at 101. 286. Rome II Regulation, supra note 265, art. 14(1). 287. SeeDu, supra note 117, at 372–73. 288. Id. at 373. 289. 2010 Law on Choice of Law, supra note 5, art. 45 (translated by author). 290. SeeDu, supra note 117, at 375. 291. Rome II Regulation, supra note 265, art. 5. 292. SeeDu, supra note 117, at 375–76. 293. Cf. Rome II Regulation, supra note 265, art. 5(2). 294. Id. art. 30(2). 295. 2010 Law on Choice of Law, supra note 5, art. 46 (translated by author). 296. Id. art. 15. 297. Cf. art. 139 of the Swiss PIL Act. Bundesgesetz über das Internationale Privatrecht [IPRG] [Federal Law on Private International Law] Dec. 18, 1987, SR 291, art. 139. 298. Id. 299. See Guo Yujun (郭玉军), Zhongguo Guoji Sifa De Lifa Fansi Jiqi Wanshan—Yi “Shewai Minshi Guanxi Falü Shiyong Fa” Wei Zhongxin (中国国际私法的立法反思及其完善——以《涉外民事关系法律适用法》为中心) [Reflections on and Perfection of the Codification of China’s Private International Law: Focusing on the Law on Choice of Law for Foreign-Related Civil Relationships], 5 Qinghua Faxue (清华法学) [Tsinghua L.J.] 155, 157 (2011). 300. Id. at 162–66; Jin Huang, New Perspectives on Private International Law in the People’s Republic of China, inPrivate International Law in Mainland China, Taiwan and Europe 3, 15 (Jürgen Basedow & Knut B. Pissler eds., 2014). 301. See Quanguo Renda Changweihui 2015 Nian Lifa Gongzuo Jihua (全国人大常委会2015年立法工作计划) [The Plan of the Standing Committee of the National People’s Congress for Legislation of the Year 2015] (promulgated by the Standing Comm. Nat’l People’s Cong., Dec. 15, 2014, amended Apr. 10, 2015), 2015 Standing Comm. Nat’l People’s Cong. Gaz. 682, 683. 302. See Xu Qingkun (许庆坤), Woguo Minfa Diyu Xiaoli Lifa Zhi Jiantao: Yi “Zhonghua Renmin Gonghe Guo Minfa Tongze” Di Ba Tiao Di Yi Kuan Wei Zhongxin (我国民法地域效力立法之检讨:以《中华人民共和国民法通则》第8条第1款为中心) [A Review of the Provision for the Territorial Force of Civil Law in China: Focusing on Article 8(1) of the General Principles of Civil Law], 5 Fashang Yanjiu (法商研究) [Stud. L. & Bus.] 157, 165 (2015). 303. See Guo, supra note 299, at 164–66. 304. See supra text accompanying notes 23–31. 305. 2012 Judicial Interpretation I, supra note 77. 306. Symeonides, supra note 32, at 21. 307. There are thirty alternative-reference rules among forty special conflicts rules (from article 11 to article 50). See 2010 Law on Choice of Law, supra note 5. 308. Xu Qingkun (许庆坤), Lun Chuantong Guoji Sifa: Jian Yu Xu Chongli Jiaoshou Shangque (论传统国际私法:兼与徐崇利教授商榷) [On Traditional Private International Law: An Argument with Professor Xu Chongli], 9 Zhongguo Guoji Sifa Yu Bijiao Fa Niankan (中国国际私法与比较法年刊) [Chinese Y.B. Priv. Int’l & Comp. L.] 3, 33–34 (2007). 309. See generally Zuigao Renmin Fayuan Guanyu Anli Zhidao Gongzuo De Guiding (最高人民法院关于案例指导工作的规定) [Notice of the Supreme People’s Court on Issuing the Provisions on Case Guidance] (promulgated by the Sup. People’s Ct., Nov. 26, 2010, effective Nov. 26, 2010), CLI.3.143870(EN) (Lawinfochina). 310. Id. arts. 1–2. 311. Id. art. 7. 312. See generally Zuigao Renmin Fayuan Guanyu Xunhui Fating Shenli Anjian Ruogan Wenti De Guiding (最高人民法院关于巡回法庭审理案件若干问题的规定) [Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Cases by the Circuit Courts] (promulgated by the Sup. People’s Ct., Jan. 28, 2015, effective Feb. 1, 2015), CLI.3.242242(EN) (Lawinfochina). © The Author(s) [2017]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png American Journal of Comparative Law Oxford University Press

The Codification of Conflicts Law in China: A Long Way to Go

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Abstract

Abstract The codification of conflicts law in China began with the 1918 Act on the Application of Law. However, the current conflicts law is mainly derived from the codifications initiated almost from scratch in the early 1980s. The 2010 Law on Choice of Law for Foreign-Related Civil Relationships is a milestone in the development of Chinese conflicts law. By drawing on the best elements from conflicts law codifications in Germany, Japan, and Switzerland, among others, as well as from the legal instruments of the European Union and the Hague Conference on Private International Law, the 2010 Law embraces some advanced global achievements in the field, such as the recognition of party autonomy as a general principle, the closest connection as a gap-filling principle, the principle of protection of the weaker party, habitual residence as a primary personal connecting factor, mandatory rules, and special choice-of-law rules for contract and tort disputes. However, the 2010 Law only repealed three conflicts law articles, and conflicts rules remain scattered throughout different statutes. Meanwhile, inconsistency and overlap still exist between the new rules and the old ones. The distinction between law in the books and law in action is of special significance here. Therefore, judicial interpretations, case decisions, and academic opinions are indispensable for lawyers both inside and outside China to grasp the essence of Chinese conflicts law. Finally, this Article identifies the challenges that will be encountered in the near future for conflicts codification in China and proposes some solutions. Introduction China1 has undoubtedly made significant progress in the codification of conflicts law2 in the past thirty years or so. As Professor Symeon C. Symeonides observed, the world has witnessed “a massive codification movement” in the last half century, in which China has been involved.3 In China, after a long isolation from the outside world, the codification of conflicts law was initiated again almost from scratch in the early 1980s. Now it boasts one freestanding statute and several other statutes that contain choice-of-law rules, as well as some corresponding judicial interpretations promulgated by the Supreme People’s Court (SPC).4 The sources of Chinese conflicts law are many and various. The latest enactment is the Law on Choice of Law for Foreign-Related Civil Relationships adopted at the seventeenth session of the Standing Committee of the eleventh National People’s Congress (NPC) on October 28, 2010 (the 2010 Law on Choice of Law).5 Although it is regarded as a comprehensive codification by some commentators both at home and abroad,6 it actually does not replace all the former choice-of-law rules, but instead only repeals three conflicts law articles.7 Most of the former choice-of-law rules remain intact. Before the adoption of the 2010 Law on Choice of Law, some basic choice-of-law rules had been codified in the General Principles of the Civil Law of 1986 (the 1986 GPCL).8 The 1986 GPCL is so remarkable in the development of China’s conflicts law that it is sometimes misunderstood as “the beginning of choice of law legislation in modern China.”9 In fact, two statutes were promulgated in 1985 that contained choice-of-law rules. Article 36 of the Law of Succession introduced the “scission” principle into China for the first time,10 a well-established conflict of laws principle in the common law world by that time.11 Article 5 of the Foreign Economic Contract Law (the 1985 FECL) adopted two fundamental principles of contract conflicts law, the principle of party autonomy and the principle of the closest connection, and stipulated that three kinds of foreign investment contracts in China shall be governed by Chinese law.12 After the 1986 GPCL, three commercial statutes were enacted; each of them contains a separate chapter dealing with conflicts issues. Chapter 14 of the Maritime Law of 1992 (the 1992 ML) includes, but is not limited to, choice-of-law rules for contracts of carriage of goods by sea, rights in rem in ships, collision of ships, and limitation of liability for maritime claims.13 The articles of Chapter 14 of the Civil Aviation Law of 1995 (the 1995 CAL) are quite similar to those of the 1992 ML, but they are more concise in content and fewer in number.14 Chapter 5 of the Negotiable Instruments Law of 1995 (the 1995 NIL) deals with the conflicts issues relating to negotiable instruments,15 and most of its articles derive from the two Geneva Conventions: the Convention for the Settlement of Certain Conflicts of Laws in Connection with Bills of Exchange and Promissory Notes (1930), and the Convention for the Settlement of Certain Conflicts of Laws in Connection with Cheques (1931).16 In 1999, the 1985 FECL and two other contract laws were consolidated into a uniform act—the Contract Law (the 1999 CL).17 Consequently, article 126 of the 1999 CL has replaced article 5 of the 1985 FECL. In addition, there exists a quasi choice-of-law rule in the Measures for Registration of Adoption of Children by Foreigners of 1999, which is different from other choice-of-law rules in form, but actually designates the applicable law for an effective adoption in China.18 The relationship between the above statutes is complex and must be clarified in order to better understand the true nature of Chinese conflicts law. As mentioned above, the 2010 Law on Choice of Law did not incorporate all existing choice-of-law rules, but rather established another set of rules and only repealed three conflicts law articles. Overlap and inconsistency exist between the new rules and the old ones.19 Article 2 of the 2010 Law on Choice of Law provides that “where other statutes have a special and different provision on the law applicable to a relation involving foreign elements, that provision shall be applied.”20 Based on this article, the provisions of the 1992 ML, 1995 CAL, or 1995 NIL shall prevail over those of the 2010 Law on Choice of Law because the former fall into the category of special provisions.21 But what is the relationship between the provisions of the 2010 Law and those of the 1986 GPCL or article 126 of the 1999 CL? The principle of lex posterior derogat priori should be resorted to, an approach widely accepted by the Chinese legal community.22 According to this principle, the provisions of the 2010 Law on Choice of Law prevail over the old ones because the 2010 Law was enacted later. However, this is only an academic interpretation. The final solution should be provided by the SPC in the form of a judicial interpretation. Judicial interpretations play a special and necessary role in developing Chinese conflicts law. From the phrase “judicial interpretation,” one might expect that the interpretation by the SPC is limited to interpreting the meaning of ambiguous choice-of-law rules. That is also the requirement of the Legislation Law of 2000 (the 2000 LL).23 Article 104 of the 2000 LL specifies that a judicial interpretation by the SPC “shall primarily focus on the specific clause of the statute in question and conform to the objectives, principles, and original meaning of the legislation.”24 However, in practice, the SPC has often supplemented or amended existing statutory provisions, or even created new rules.25 The SPC has taken even greater liberties in the area of conflicts law. This is primarily because conflicts law is an arcane area, “a dismal swamp,”26 “mired in mystery and confusion,”27 and legislators have been reluctant to make detailed rules, and instead have merely created a framework that leaves room for the SPC to develop rules within that framework.28 For instance, article 126 of the 1999 CL only provides two basic principles for numerous types of conflicts cases relating to contractual obligations. It has caused much confusion in its application. In order to unify court practice at all levels, the Rules of the SPC on the Relevant Issues Concerning the Application of Law in Hearing Foreign-Related Contractual Dispute Cases in Civil and Commercial Matters was issued in 2007 (the 2007 Rules), and included twelve articles in total, among which several new rules were created.29 Therefore, judicial interpretations are de facto a source of law in China.30 Nearly all of the important conflicts statutes have a corresponding judicial interpretation that is indispensable for lawyers both inside and outside China to grasp the essence of Chinese conflicts law.31 As in the United States, the distinction between law in the books and law in action is significant in China.32 A number of conflicts cases have been treated as domestic cases and have completely disregarded choice-of-law rules.33 In addition, it is commonplace that Chinese courts apply the lex fori, primarily due to their unfamiliarity with foreign law, even though most choice-of-law rules have no overt bias toward applying domestic law.34 Furthermore, expert opinions have been influential to some extent in the evolution of conflicts law even though academic doctrines are not formal sources of law. For example, as early as 2004, the High People’s Court of Guangdong Province invoked the doctrine of mandatory rules to make a decision even before the doctrine was adopted in the 2010 Law on Choice of Law.35 Therefore, the following discussion will use case decisions and academic works where appropriate in order to show the actual landscape of conflicts law in China. This Article analyzes the codification of conflicts law in China from a comparative perspective. For a long time, China has strived to establish a legal system with Chinese characteristics by drawing on the best elements of laws from all over the world.36 The codification of conflicts law is part of that process. The following discussion begins with a historical overview of the codification of conflicts law before and after the founding of the People’s Republic of China (PRC), so as to look into the motivations for codification at different stages and reveal the experiences and lessons thereof. This Article then examines some general issues in conflicts law to show how the legislature endeavors to assimilate the achievements of conflicts codifications outside China. Part III focuses on conflicts law for contracts, the rules most frequently applied in judicial practice. Part IV probes the conflicts rules for torts in general and for two particular types of torts. Finally, I draw conclusions from the Chinese conflicts codification, analyze the challenges that will be encountered in the near future, and propose some solutions. I. A Historical Overview Conflicts law is not part of the Chinese legal tradition but was received from the West. From the 1840s, China has developed into a transitional society facing great challenges that “never happened during the last three thousand years.”37 In order to cope with these challenges, one of the measures adopted has been to gradually depart from the criminal law-focused tradition and establish a new legal system similar to those of Western countries.38 The historical development of Chinese conflicts law can be divided into three periods: (1) the period before the founding of the PRC in 1949; (2) the period from the founding of the PRC to its accession to the World Trade Organization (WTO) in 2001; and (3) the period after its accession to the WTO. During the first two periods, political factors impacted heavily on conflicts codification; during the third period, the influence of economic considerations is more conspicuous. A. Before the Founding of the PRC in 1949 Many Chinese scholars assert that the codification of conflicts law in China can be traced back to a single clause in the Tang Code of the Tang Dynasty (618–907).39 One scholar even goes so far as to declare that the “legislation of China’s private international law has a glorious past.”40 This argument has even caught the attention of some American scholars.41 However, this argument is dubious. Article 48 of the Tang Code provided that when one uncivilized person infringed upon another uncivilized person’s rights, and both of them were from the same country, the law of that country should govern the crime; if they were from different countries, the law of the Tang Dynasty should apply.42 The official commentary that accompanied the Tang Code (Tanglü Shuyi) pointed out that this clause was applied to determine crimes and penalties.43 Such a provision should not be treated as a conflicts rule because conflicts law is “that part of the private law” dealing with civil or commercial matters involving foreign elements.44 Some commentators have argued that there was no distinction between civil law and criminal law in ancient China, and that the clause of the Tang Code could be applied to civil cases.45 But such an argument is indefensible because the latest research on the Tang Code convincingly demonstrates that its rules were merely criminal law rules, and criminal law was clearly distinguished from civil law.46 Furthermore, conflicts law can only exist where “respect is shown for foreign law” and “there is an atmosphere of equality.”47 Quite to the contrary, in ancient China, the relations between China and surrounding countries constituted a Sino-centric world order in which all other countries had to be “submissive and obedient” to China.48 The real beginning of the codification of conflicts law in China is the Act on the Application of Law (the 1918 Act), which was promulgated and came into effect on August 5, 1918, and consisted of seven chapters and twenty-seven articles.49 It covered general provisions of law, the capacity of persons, family relations, succession, property, contract, wrongful acts, and the formality of juridical acts.50 As a forerunner of freestanding statutes, it was principally modeled on the Japanese Hōrei of 1898 and was regarded as one of the “most detailed and comprehensive” statutes in the world at that time.51 It has also been commented on by foreign scholars.52 However, the effect of its application was rather unsatisfactory because, in practice, it was among the least frequently applied statutes in those days.53 In fact, the primary motivation in enacting the 1918 Act was not to provide conflicts rules to meet practical needs, but to demonstrate China’s determination to improve its legal system.54 After the First Opium War, many unequal treaties were imposed on China through which Western countries obtained the benefit of extraterritoriality, and foreigners in China were not subject to Chinese law or judicial jurisdiction, but to their own national law and consular jurisdiction.55 In order to abolish such extraterritoriality, China had to establish a comprehensive legal system that included conflicts law; therefore, the adoption of the 1918 Act was more significant symbolically than in fact.56 B. From the Founding of the PRC to Its Accession to the WTO in 2001 In this period, the 1918 Act was abolished and the codification of new conflicts law stumbled through political movements and economic reforms. This period can be further divided into two stages. The first stage stretched from 1949 to the early 1980s, and the second extended to China’s accession to the WTO in 2001. 1. From 1949 to the Early 1980s After the Communist Party of China took control of Mainland China in 1949, the Six Codes and other statutes of the former nationalist government, including the 1918 Act, were repealed as the new government sought to strictly distinguish the new socialist legal system from the previous capitalist one, and planned to paint “the freshest and most beautiful pictures” on “a blank sheet of paper free from any mark.”57 However, under the influence of the former Soviet Union, some basic statutes were enacted in the 1950s, and the whole country was soon involved in a series of political movements, most notably the Cultural Revolution from 1968 to 1978, which almost abolished all legal rules.58 During this stage, choice-of-law rules existed only in some consular treaties, such as the 1959 Sino-Soviet Consular Treaty.59 Not only was there scarcely any conflicts law, but anti-foreign sentiments were pervasive; research on conflicts law was regarded as a “forbidden, even perilous, academic pursuit,” for the discussion was associated with the capitalism.60 2. From the Early 1980s to 2001 In the late 1970s, China began to adopt a policy of economic reform and openness to the outside world, which put China on the road to a market economy.61 The proliferation of international economic activities called for legal rules to deal with the increasing number of conflicts cases.62 The 1985 FECL and the 1985 Law of Succession were enacted in the same year: the former was to solve commercial disputes, while the latter concerned succession matters. However, they both contained just one conflicts rule, which proved insufficient to deal with the enormous number of cases. Shortly thereafter, the 1986 GPCL was enacted and provided a separate chapter on conflicts law to meet the urgent need. In drafting this chapter, resistance to the adoption of a comprehensive conflicts system was strong. While the original draft consisted of twenty-eight articles relating to conflicts law, the number decreased to twenty-one in the second draft, to fourteen in the third, and to just nine in the final draft.63 Despite the powerful resistance, the economic demand finally prevailed, and some basic conflicts rules were established. The chapter in the 1986 GPCL covers the application of international treaties and usages, rights in rem in immovables, civil capacity, contracts, torts, marriage and divorce, maintenance, succession, and public policy. Because the articles are vague and general, the SPC had to issue a judicial interpretation for clarification and supplementation.64 Afterwards, the 1992 ML, the 1995 NIL, and the 1995 CAL were enacted; each contains one chapter dealing with their respective conflicts issues. As mentioned above, the 1999 CL later replaced the 1985 FECL.65 During this stage, a framework for conflicts law was constructed even though conflicts rules were scattered throughout different statutes and judicial interpretations.66 However, the flaws of this framework are obvious. First, some of the conflicts rules are incomplete. For example, article 144 of the 1986 GPCL only regulates rights in rem in immovable property, but not rights in rem in movable property. Second, some of the rules are obsolete. For instance, article 146 of the 1986 GPCL adopts the double actionability rule, which was later abolished in 1995 in the United Kingdom, where the rule had originated. Third, the legislative technique is inconsistent. Finally, some of the rules contradict each other.67 C. After the Accession to the WTO Since China’s accession to the WTO in 2001, the number of cases involving foreign elements has rapidly increased, and legislation on conflicts law has simultaneously accelerated. For example, from 2001 to 2005, commercial and maritime cases involving foreign elements heard by courts of first instance totaled 63,765.68 In 2002, a draft of a civil code (the Draft Civil Code) was submitted to the Standing Committee of the NPC for a first reading, and book nine of the draft was dedicated to choice-of-law rules and included eight chapters with a total of ninety-four articles.69 Yet, it was soon decided that the Draft Civil Code would not be adopted as a whole, but rather book by book.70 Thereafter, the draft of book nine received no action on the legislative agendas of the tenth and eleventh NPC for seven years. During this period, in response to the pressing demand for choice-of-law rules relating to contractual obligations, a detailed judicial interpretation of the 1999 CL was issued by the SPC in 2007.71 When the Tort Liability Law, the last book of substantive law of the Draft Civil Code, was adopted on December 26, 2009, the NPC Standing Committee resumed drafting conflicts law in order to “ensure the establishment of the socialist legal system with Chinese characteristics” before the end of 2010.72 Based on book nine of the Draft Civil Code and on a proposed draft by the Chinese Society of Private International Law (CSPIL), the Legislative Affairs Commission of the NPC Standing Committee drafted a bill that was submitted to the Standing Committee of the eleventh NPC for a second reading on August 23, 2010, and was soon released on the NPC’s website for public comment from August 28 to September 20, 2010.73 Though a great number of comments and opinions were received by the Legislative Affairs Commission, few of them were adopted.74 The bill was unanimously adopted with minor alterations by the NPC Standing Committee on October 28, 2010, and became effective on April 1, 2011.75 The NPC devoted less than a year to drafting the 2010 Law on Choice of Law, and its fifty-two articles are far fewer than the ninety-four articles of book nine of the Draft Civil Code. Even though legislators endeavored to learn from the legislative experience of other countries and account for the latest developments in conflicts law around the world,76 it was inevitable that the 2010 Law would provide only a framework for future development: most of its articles are general and ambiguous and leave many issues unresolved. Therefore, Interpretation I by the SPC on Issues Concerning the Application of the 2010 Law on Choice of Law was issued on December 28, 2012 (the 2012 Judicial Interpretation I).77 It aims to clarify and supplement the provisions of chapter one of the 2010 Law; it is likely that more judicial interpretations will be issued for other chapters in the near future. Academic opinions played an important role in this period. As early as 2000, a comprehensive model law of Chinese private international law by the CSPIL was published, and later became a blueprint for book nine of the Draft Civil Code.78 After the Legislative Affairs Commission decided to resume codification of conflicts law, the CSPIL was entrusted to provide a draft code; shortly afterward, a drafting team was formed and a proposed draft was submitted to the Legislative Affairs Commission in March 2010.79 Although many gaps still exist in the current conflicts law, basic conflicts rules have been established in China. By drawing on the best elements from the conflicts codifications in Germany, Japan, and Switzerland, among many others, as well as from the legal instruments of the European Union and the Hague Conference on Private International Law,80 the 2010 Law on Choice of Law embraces some advanced achievements in the world, such as recognition of the principle of protection of the weaker party, habitual residence as the primary personal connecting factor, and special conflicts rules for intellectual property. In the following Part, I discuss some general conflicts issues and special rules for contracts and torts, focused mainly on the 2010 Law on Choice of Law and the 2012 Judicial Interpretation I. II. General Issues in Conflicts Law A. Party Autonomy as a General Principle One of the prominent innovations of the 2010 Law on Choice of Law is that party autonomy is ascended to a general principle. Article 3 states that “the parties may, in accordance with a provision of law, expressly make a choice of law applicable to a civil relation with foreign elements.”81 Before 2010, the freedom of parties to make a choice of law was limited to contractual disputes under Chinese law.82 Even Switzerland, which is “perhaps the most liberal country on party autonomy,” does not elevate it to a general principle.83 However, careful examination of article 3 reveals that this provision might be not as significant as it appears, for it requires that the choice of law by the parties be made “in accordance with a provision of law.” It implies that only when another provision of law permits the parties to make a choice of law, do the parties enjoy such a right. Yet, the 2012 Judicial Interpretation I makes this article more meaningful. According to the Interpretation, the wording “expressly make a choice of law” in article 3 should not be read strictly so as not to cover cases where the parties invoke the same law and neither of them objects to the applicability of that law.84 Furthermore, the parties may even choose any international treaty that has not become effective in China as the law applicable to the dispute.85 The law chosen by the parties is not required to have an actual relationship with the dispute.86 The parties are also left much leeway to make a choice of law, which may be made before the end of closing arguments in the court of first instance.87 Although the significance of article 3 is rather symbolic, the principle of party autonomy actually affects many more areas in the 2010 Law on Choice of Law than ever before. Besides ordinary contracts (article 41, unrestricted88), this principle extends to the following issues: agency (article 16(2), unrestricted), trust (article 17, unrestricted), arbitration agreements (article 18, unrestricted), matrimonial property (article 24, choice between the law of a party’s habitual residence and country of nationality, and the law of the place where the main property is located), uncontested divorce (article 26, choice between the law of a party’s habitual residence and country of nationality), rights in rem in ordinary movable property (article 37, unrestricted), rights in rem in movable property in transit (article 38, unrestricted), consumer contracts (article 42, choice of the law of the place where the good or service is provided), torts (article 44, choice of law after the tortious act occurs), product liability (article 45, choice between the law of the tortfeasor’s principal place of business and the lex loci damni), unjust enrichment and negotiorum gestio (article 47, unrestricted), transfer and license of intellectual property rights (article 49, unrestricted), and liability for infringement of intellectual property rights (article 50, choice of the lex fori after infringement occurs).89 In total, the principle of party autonomy affects fourteen articles that account for more than one third of all special choice-of-law rules (forty articles in total). The basis for these provisions is the idea that “private matters should be dealt with primarily by private parties.”90 This idea is obviously influenced by the prevailing opinion among Chinese academics that the current trend in the world extends party autonomy to areas other than contracts.91 In addition, before the adoption of the 2010 Law on Choice of Law, some Chinese courts had applied the principle of party autonomy to areas other than contracts, such as rights in rem, equity interests, torts, and unjust enrichment, even though there were no provisions of law empowering them to do so.92 Thus these articles also reflect prior judicial practice. It is worth noting that party autonomy has been introduced into the area of rights in rem in movable property. As mentioned above, no conflicts rule existed in this area before the 2010 Law. Article 37 thus transforms China’s conflicts law from the lack of any rule to perhaps the most liberal regime with respect to rights in rem in movable property.93 It is similar to article 104 of the Swiss Federal Act on Private International Law of 1987 (the Swiss PIL Act); nevertheless the latter imposes limitations on the choice of law by parties in three regards: (1) the law chosen must be the law of the state of dispatch or destination, or the law that governs the underlying juridical act; (2) the parties may make a choice merely for issues of acquisition and the loss of rights in rem in movable property and not for other issues; and (3) this choice cannot be asserted against third parties.94 This excessively permissive provision of article 37 has been severely criticized by Chinese commentators.95 B. The Closest Connection as a Gap-Filling Principle The principle of the closest connection has been a flexible connecting factor for several years in China. It was first employed in 1985 to determine the law applicable to contractual disputes in the absence of an effective choice of law by the parties.96 The 1986 GPCL extends its application to maintenance obligations.97 The 1988 Opinions further employs this principle to determine the law of nationality where a foreigner has two or more nationalities, or to determine the domicile where a party has more than one domicile, or to ascertain the place of business where there is more than one place of business, or to resolve interregional conflict of laws.98 Among several principles and approaches, this principle has been most frequently employed to decide applicable law issues in more than a third of all cases in Chinese courts.99 Recognizing the merit of the principle in achieving justice in individual cases, China’s legislature raised it to a general principle for all civil relations with foreign elements. Article 2(2) of the 2010 Law on Choice of Law provides that “a civil relation with foreign elements is governed by the law with which the relation has the closest connection, unless otherwise provided by this Act and other laws.”100 Though it only plays a role as a gap-filling principle, as it does in Russian conflicts law,101 it is the first time that China has applied this principle to all areas, including commercial matters.102 It is important to recall that the drafts of the 2010 Law on Choice of Law had elevated the principle of the closest connection to a higher level. Articles 5 and 6 of the proposed draft submitted by the CSPIL employed the principle as a gap-filling and general escape device, while at the same time emphasizing that the applicable law should be fair to all parties.103 Article 6(1) was obviously influenced by article 15 of Swiss PIL Act.104 Article 6(2) required courts to examine the content of potentially conflicting substantive rules in order to ensure that the applicable law is appropriate, thus showing an American influence.105 During the second reading of the draft, this principle still enjoyed prominence as both a general escape and gap-filling device.106 The two drafts of the 2010 Law on Choice of Law reflect the prevailing opinion among Chinese academics at the time that the trend toward flexibility of conflicts law was prominent throughout the world and that the principle of the closest connection was a proper soft connecting factor.107 In contrast to scholars’ enthusiasm, Chinese courts unskillfully applied the principle: judges often employed it as an excuse to apply the lex fori “without closely weighing one connecting factor against another.”108 Probably based on judicial practice, the legislature finally chose certainty over flexibility, and the general escape clause was removed from the final draft, while the principle of the closest connection was inserted into two specific conflicts rules for contracts and negotiable instruments, both of which had previously employed rigid connecting factors.109 C. Habitual Residence as the Primary Personal Connecting Factor Strongly influenced by the conflicts law of civil law countries, China’s first conflicts statute adopted nationality as the primary personal connecting factor, whether for capacity of natural persons, family matters, succession, or even juridical acts.110 Nationality as a connecting factor has its advantages. It is easier to ascertain than domicile; it also reflects the relation between a person and a country, for a sovereign should make laws for his or her people based on the considerations of “their habits and temperament, their physical and moral qualities, and even the climate, temperature and fertility of the soil.”111 But the objections are more persuasive: it deprives a person of his or her right to freely choose a law, sometimes requiring a person to obey “the laws of a country to escape from which he has perhaps risked his life”; the applicable law should have an appropriate connection with a party, but the most easily ascertained law may not be appropriate; nationality makes no sense for solving interregional conflict of laws.112 After considering the disadvantages of nationality and under the influence of the common law, China’s legislature began to introduce domicile into some areas in the 1980s. For example, article 149 of the 1986 GPCL provides that succession of movables is governed by the law of the decedent’s last domicile.113 However, although widely used in Anglo-American common law, the term domicile has inherent defects. Its definition may vary in different circumstances and may be interpreted differently by different courts.114 It is difficult to prove a person’s intention to “reside permanently or for an unlimited time in a country,” which is necessary to acquire a domicile of choice.115 As a codified system, Chinese law has no precedents relating to the definition of domicile, so it employs the household registration system (hu kou) to determine domicile: “The domicile of a citizen shall be the place where his residence is registered . . . .”116 But this definition should only be employed in domestic substantive law rather than conflicts law. The search for a better personal connecting factor continues in China. Since the 1990s, more and more Chinese commentators have come to a similar conclusion, i.e., the developing trend in the world is to adopt habitual residence as a personal connecting factor.117 In addition, nearly half of all cases with foreign elements involve parties from Taiwan, Hong Kong, and Macao,118 the conflict of laws in these cases is interregional conflict for which nationality is meaningless. Therefore, China’s legislature finally adopted habitual residence as the primary connecting factor in the 2010 Law on Choice of Law. Out of fifty-two articles, habitual residence is employed in twenty-five.119 It is a challenge for Chinese courts to properly define habitual residence. As a term frequently used in the Hague Conventions and in the regulations of the European Union, it has a more elusive definition than domicile.120 Courts have resisted defining the term so that they will have more discretion to clarify it based on the facts of each individual case.121 Since the promulgation of the 2010 Law on Choice of Law occurred only recently, Chinese courts are not experienced in applying this flexible concept; their decisions are thus inconsistent and unpredictable. In order to clarify the meaning of the concept, the SPC has stated that the habitual residence of a natural person refers to the place where a natural person has consecutively lived for a period of no less than one year as his or her life center, at the time of the creation, change, or termination of any civil relation with foreign elements . . . except when the natural person lived there for medical treatment, labor dispatch, official duty, or other similar reasons.122 This provision is derived from article 9 of the 1988 Opinions, which specifies that “the place where a citizen consecutively lives for a period of no less than one year after leaving his or her domicile is his or her habitual residence, except that the citizen lives in hospital for medical treatment.”123 But this definition applies only to domestic cases rather than cases with foreign elements. In addition, the limitation of “no less than one year” is too rigid: it might defeat the purpose of the 2010 Law on Choice of Law to introduce a relatively flexible connecting factor. Last, but not least, determining “consecutively lived” is not an easy task, because many people nowadays move frequently from one place to another, for instance, working in one country for several months then studying in another place for some period.124 Regarding the personal connecting factor for a juridical person, there is a divergence between the “incorporation theory” mainly adopted in common law countries and the “real seat theory” used in most continental European countries.125 China has consistently adopted the incorporation theory as the main method to determine the personal law of a juridical person. The 1988 Opinions provides that “[f]or a foreign juridical person, the law of the place of its registration shall be deemed as its national law, and its civil capacity shall be governed by its national law.”126 The 2010 Law on Choice of Law stipulates that the internal affairs of juridical persons are governed by the law of the place of registration, but the law of the principal place of business may apply if the principal place of business is different from the place of registration.127 The 2010 Law incorporates the real seat theory to some extent, although the incorporation theory is still the preferred approach. D. Proof of Foreign Law Following the tradition of civil law countries, China has adopted a system of inquisitorial civil procedure and treats the application of foreign law as a question of law.128 The 1986 GPCL stipulates: “The application of law in civil relations with foreign elements shall be determined in accordance with the provisions in this chapter.”129 The 1988 Opinions further elaborates that courts shall apply the substantive law in accordance with the provisions of the 1986 GPCL.130 The 2010 Law on Choice of Law provides: “The law applicable to civil relations with foreign elements shall be determined in accordance with this Act. Where other statutes have special and different provisions on the law applicable to civil relations with foreign elements, those provisions shall apply.”131 The word “shall” implies that conflicts law is mandatory rather than discretionary. If it is a foreign law to which the conflicts rule refers, the court has the duty to apply it, even without a pleading to this effect by a party.132 At this point, there is a divergence between law in the books and law in action, because many conflicts cases have been treated as domestic cases by Chinese courts even where parties have agreed in their contract on the application of a foreign law.133 In addition, under the influence of the doctrine of facultative choice of law, some Chinese commentators have argued for treating conflicts law as being facultative in China, at least for the matters of which parties could freely dispose.134 More troublesome is the issue of the ascertainment of foreign law. Various methods have been used at different times. In 1987, the judicial interpretation of the 1986 FECL stipulated four methods to be employed by courts.135 In the next year, another method was added by the SPC. Thus five methods were prescribed: foreign law may be provided by the parties, by the central authority of the foreign country which has concluded a treaty of judicial assistance with China, by China’s embassy or consulate stationed in the relevant foreign country, by the embassy of the relevant foreign country in China, or by Chinese or foreign legal experts.136 Though the methods were various, the effect of employing them was rather unsatisfactory, and few courts actively made full use of them to ascertain foreign law because there were no detailed rules as to how to implement them and most courts were reluctant to apply foreign law.137 Based on judicial practice, the SPC substantially amended its former provisions in a summary of the national meeting of 2005 (the 2005 Notice): foreign law should be firstly provided or ascertained by parties via legal experts, international organizations, the Internet, etc., and foreign law books or other legal materials may be consulted simultaneously.138 Only when it is difficult for parties to provide foreign law may they petition the court to ascertain it.139 According to the provision, the parties bear the main burden for ascertaining the foreign law, while the role of the courts is secondary. This is contrary to the civil law tradition followed by China. Therefore, the 2007 Rules modified the approach and endeavored to properly allocate the duties between the court and the parties by stipulating that the parties should provide or ascertain the foreign law where the foreign law was chosen by them for a contractual dispute, and the court should ascertain the foreign law ex officio or require the parties to provide or prove the content of foreign law where the foreign law was determined according to the principle of the closest connection.140 This provision is limited to contractual obligations. Mainly based on this provision, the 2010 Law on Choice of Law extends the approach to all areas and elevates it to a statutory provision, as provided in article 10: “The foreign law applicable to a civil relation with foreign elements shall be ascertained by the people’s court, arbitration institution, or the administrative agency. Where the parties make a choice of a foreign law to be applicable, they shall provide the law of that country.”141 Under the new rule, parties are obliged to provide foreign law if they choose such a law, but generally it is still the court’s duty to ascertain foreign law ex officio, for the parties’ duty is limited to provide rather than ascertain the foreign law. Compared with the provision in the 2005 Notice, the new rule returns to the civil law tradition and the courts carry a heavier burden, though the delimitation between the court’s duty and that of the parties’ is now more clearly defined. However, the courts are rather passive in ascertaining foreign law, the same as before,142 and the new rule has been criticized by some Chinese commentators as being both too idealistic and legally paternalistic.143 It is a significant issue in practice to determine when courts cannot ascertain a foreign law; a case might be pending indefinitely if the question is not answered. In order to enhance judicial efficiency, the 2012 Judicial Interpretation I provides the following solution: Where the people’s court cannot ascertain a foreign law by such reasonable approaches as proof by the parties, the methods stipulated in an international treaty which is effective in the People’s Republic of China, proof by Chinese and foreign legal experts, and other appropriate means, the people’s court may determine such a foreign law as unascertained.  Where, pursuant to article 10(1) of the Law on Choice of Law for Foreign-Related Civil Relationships, parties who are required to provide a foreign law but fail to do so without a justifiable reason within the reasonable time as fixed by the people’s court, the people’s court may determine such a foreign law as unascertained.144 An immediate question is which law applies if the foreign law cannot be ascertained. The answer is almost the same in all judicial interpretations and in the 2010 Law on Choice of Law: Chinese law.145 However, some Chinese commentators have questioned whether such a simple answer has encouraged the “homeward trend” that has prevailed over the years in China.146 E. Mandatory Rules Occasionally applied by courts,147 and advocated by Chinese commentators for many years prior to 2010,148 the doctrine of mandatory rules received statutory recognition in article 4 of the 2010 Law on Choice of Law, which provides: “Where there exists a mandatory provision concerning civil relations with foreign elements in the law of the People’s Republic of China, that mandatory provision shall apply.”149 In comparison with the provision in the Swiss PIL Act, this article does not require courts to consider the particular purpose of the Chinese law, or consider the mandatory provisions of the foreign law.150 Unlike the provisions of the European Regulation on the Law Applicable to Contractual Obligations (Rome I Regulation),151 article 4 does not clearly distinguish between provisions of law “which cannot be derogated from by agreement” and “overriding mandatory provisions.” However, the phrase “concerning civil relations with foreign elements” seems to imply that this article merely focuses on “overriding mandatory provisions.”152 First noticed by Friedrich Carl von Savigny more than a century ago, and extensively discussed in many countries after mandatory rules were rediscovered by Phocion Francescakis in the 1950s, this special class of norms is still not susceptible to being clearly and precisely delineated.153 Professor Frank Benedict Vischer once pointed out that such rules should “express a strong policy of a State” and listed some areas that were pertinent to state interests, such as the regulation and control of the market and the national economy, protection of national interests in landed property, and control of the securities market.154 But these general descriptions may be of little value for individual cases: issues such as how to decide “strong policy” and whether all the rules in those areas should be treated as mandatory rules are still unsettled. Meanwhile, in modern societies, as Friedrich Juenger correctly realized, “interventionism has prompted an unprecedented proliferation of ‘strictly positive statutes’. . . . [M]ore of them are enacted every day,”155 and the unlimited application of mandatory rules would impair the smooth working of the conflicts system and, to some extent, defeat the purpose of the bilateral approach to resolving conflicts of laws. Fully realizing the risks inherent in the doctrine of mandatory rules, and the fact that most Chinese courts are unfamiliar with the notion of mandatory rules, the SPC clarifies mandatory rules as follows: Under any of the following situations, a provision of a law or administrative regulation that involves the public interests of the People’s Republic of China and which may not be precluded by parties’ agreement and may be directly applicable to the civil relation with foreign elements without considering the provision of a conflict-of-law rule, may be determined by the people’s court to be a mandatory rule according to article 4 of the Law on Choice of Law for Foreign-Related Civil Relationships where it involves: (1) the protection for the rights and interests of employees; (2) security of food or public health; (3) environmental security; (4) financial security such as the regulation of foreign exchanges; (5) antimonopoly and antidumping; or (6) any other situation determined to be a mandatory rule.156 The SPC interpretation seems to make things more complicated and therefore may not be of much help. The first part mainly describes the effect of mandatory rules, i.e., that they are directly applicable to foreign civil relations and supersede conflicts rules, rather than enumerates the criteria used to identify them, though it does clarify that “the law” in article 4 of the 2010 Law on Choice of Law should be understood more broadly as “a provision of a law or administrative regulation” and that only those rules aimed at protecting “public interests” may be mandatory rules. The second part reminds the courts of the areas in which mandatory rules are probably involved. However, the reasonableness of the list is debatable. Taking the first area as an example, since there exists a special conflicts rule for the protection of employees,157 the compulsory substantive rules of the lex fori should not be directly applied because considerations for the special protection have already been embodied in the conflicts rule.158 The fourteenth annual survey of Chinese conflicts cases discloses abuses of the doctrine of mandatory rules in some courts. Among fifty noteworthy decisions, the doctrine was employed in seven decisions (14%), and in some cases, the doctrine was improperly applied together with the unilateral conflicts rule or the doctrine of evasion of law.159 F. Characterization For the issue of what law shall apply to characterization, a simple solution is provided in the 2010 Law on Choice of Law. It stipulates that the characterization of a civil relation with foreign elements shall be governed by the law of the forum.160 It has essentially discarded the original provision in the Draft Civil Code that empowered courts to apply either the lex fori or the lex causae.161 The solution proposed by the CSPIL was also rejected: it had left some room for applying a law other than the lex fori.162 In choosing between the two approaches, the Chinese legislature was influenced by the great majority of continental European writers, though it did not acknowledge that the traditional European solution contains certain exceptions.163 Under such a rigid provision, Chinese courts will encounter difficulties when there is no equivalent in Chinese law to an institution of the foreign law. Some Chinese scholars have suggested the SPC should interpret this provision in a more “liberal” and “enlightened” manner,164 but the SPC remained silent on the suggestion in the 2012 Judicial Interpretation I. Prior to the 2010 Law on Choice of Law, the SPC had actually employed the lex causae rule to characterize a foreign relation as a trust rather than a commission contract,165 but the new statutory provision would prevent a similar solution from being adopted in the future. Furthermore, in contrast to the new American approach which focuses on an “issue,”166 the subject matter of the characterization in China is the whole civil relation. G. Renvoi Renvoi was adopted in the 1918 Act almost a century ago,167 and the pros and cons of the doctrine have been thoroughly examined since then.168 Mainly focused on the advantage of achieving international uniformity of decisions, the prevailing opinion in China strongly argues for the resort to renvoi.169 Therefore, article 8(2) of the proposed draft by the CSPIL adopted renvoi in a limited scope and provided that “[i]n matters relating to civil status, marriage and family issues, and succession, whenever foreign law should apply under this Act and the foreign law refers to the law of the People’s Republic of China, the law of the People’s Republic of China shall apply.”170 A similar provision can be found in the Draft Civil Code.171 However, renvoi is “a professor’s delight but a practitioner’s and judge’s nightmare.”172 The difficulties, such as unpredictability of result and the circulus inextricabilis caused by application of renvoi, have been fully discussed outside China.173 Fortunately, the Chinese legislature has rejected the ostensible advantages of renvoi and completely discarded it with the 2010 Law on Choice of Law, which provides that “[t]he foreign law applicable to civil relations with foreign elements does not include choice-of-law rules of that country.”174 With regard to the advantage of achieving international uniformity of decisions, Professor Tiezheng Liu from Taiwan eloquently rebutted the argument many years ago. He pointed out that the goal of international uniformity of decisions might be laudable and even achievable in a few cases, but the chances of achieving it are slim, for the achievement depends on a long list of limitations.175 More than ten years ago, two Chinese commentators argued against renvoi from a law-and-economics and historical perspective.176 Considering that the principles of party autonomy and of the closest connection are widely employed, and that most choice-of-law rules are flexible, it is indeed necessary and reasonable for the 2010 Law on Choice of Law to repudiate renvoi. H. Public Policy and Evasion of Law As a “last-ditch weapon wielded at the end of the forum’s choice of law process,”177 the public policy doctrine has been employed as a useful device to exclude the application of foreign law since the beginning of conflicts codification in China. Article 1 of the 1918 Act provides: “The application of foreign law under this Act shall be excluded if its provision is repugnant to the ordre public or boni mores of China.”178 Under this article, public policy was termed “ordre public or boni mores” and the content, rather than the consequences, of the application of a foreign law might lead to the exclusion of its application. Article 150 of the 1986 GPCL amended article 1 of the 1918 Act in three respects.179 First, the focus shifted from the content of foreign law to the results of the application of foreign law; second, public policy was termed “social and public interests”; and third, international usages may also be the target of exclusion. The first point is reasonable because it is common to focus on the results of applying foreign law.180 However, the other two points evoked much criticism from academics. The term “social and public interests” was criticized because public policy covers fundamental principles of law, prevalent conceptions of good morals and significant public interests, and the wording “social and public interests” is too simple and ambiguous.181 With regard to the third point, commentators argued that international usages should not be excluded for reasons of public policy because international usages themselves are optional rather than mandatory.182 In addition, another flaw of the above article lies in the fact that it does not stipulate which law shall apply after foreign law is excluded.183 Perhaps due to the influence of such criticisms, the new provision of the 2010 Law on Choice of Law is a great improvement: although the wording “social and public interests” remains intact, the provision now stipulates that “the law of the People’s Republic of China shall apply if the application of foreign law would prejudice the social and public interests of the People’s Republic of China.”184 The doctrine of evasion of law has never been adopted in statutory provisions, though it was embraced twice by the SPC in its judicial interpretations. It was created for the first time in the 1988 Opinions, which provides: “In case any party evades the compulsory or prohibitive provisions of law of the People’s Republic of China, the foreign law shall not be applied.”185 Although the doctrine was extensively discussed by commentators and considered an indispensible device to protect the authority of law and smooth working of the legal system,186 the legislature wisely remained silent in the 2010 Law on Choice of Law. However, the SPC revived the doctrine in the 2012 Judicial Interpretation I, which stipulates that “where a party intentionally evades the mandatory provisions of the laws or administrative regulations of the People’s Republic of China by establishing a connecting factor of a civil relation with foreign elements, the people’s court shall determine that it shall not lead to the application of foreign law.”187 However, this provision has attracted strong criticisms from Chinese commentators for the following reasons: it is inconsistent with many existing rules of law, the doctrine has never been proved necessary by past judicial practice, and the doctrine frequently leads to judicial autocracy that significantly encroaches upon the logical harmony and fundamental aims of the conflicts system.188 III. Choice-of-Law Rules for Contracts Among cases with foreign elements, contractual disputes account for the largest portion in China.189 Accordingly, more choice-of-law rules have been enacted in the area of contracts than in any other area: for example, article 5 of the 1985 FECL, article 145 of the 1986 GPCL, article 269 of the 1992 ML, article 188 of the 1995 CAL, article 126 of the 1999 CL, and articles 41–43 of the 2010 Law on Choice of Law, as well as two judicial interpretations (the 1987 Response and the 2007 Rules) focus on contractual obligations.190 These various rules may be confusing to outsiders. Thus the following discussion will begin by clarifying the relationship between the different rules, then probe the general choice-of-law rules, and finally analyze the special choice-of-law rules for consumer and employment contracts. A. Relationship Among Various Legal Resources It is not very difficult to prioritize the different statutes dealing with contract conflicts. As mentioned above, article 5 of the 1985 FECL was replaced by article 126 of the 1999 CL.191 Article 269 of the 1992 ML (governing contracts for the carriage of goods by sea) and article 188 of the 1995 CAL (governing contracts for the carriage of goods by air) take priority over article 41 of the 2010 Law on Choice of Law.192 The latter conclusion has been confirmed by the 2012 Judicial Interpretation I.193 It seems somewhat problematic to determine the relationship between article 145 of the 1986 GPCL, article 126 of the 1999 CL, and article 41 of the 2010 Law on Choice of Law, for all of them were enacted by the NPC and regulate similar subject matter, but they are essentially different in at least one respect: only the 2010 Law on Choice of Law has adopted the principle of characteristic performance.194 With respect to this question, the 2012 Judicial Interpretation I provides that the 2010 Law on Choice of Law should prevail over the other two statutes where the provisions in the former are different from those in the latter.195 This provision conforms to the principle of lex posterior derogat priori.196 However, article 126(2) of the 1999 CL, which stipulates the applicable law for three types of foreign investment contracts, remains effective, because it is a special provision for the matters not covered by the 2010 Law on Choice of Law.197 The binding force of the two judicial interpretations is complex. From the law-in-the-books perspective, both of them have been repealed. The 1987 Response was expressly abolished by the SPC on July 13, 2000, because the 1985 FECL was replaced by the 1999 CL.198 Some leading commentators argued that provisions of the 1987 Response were reasonable and had been widely accepted by courts for many years, and that it should continue to function as a guiding judicial opinion before the new judicial interpretation was issued.199 In practice, some courts followed the opinion and still invoked the 1987 Response to make decisions even after it was abolished.200 The 2007 Rules actually retained most of the choice-of-law rules of the 1987 Response but they were also declared invalid on April 8, 2013, because some provisions were incompatible with those of the 2010 Law on Choice of Law.201 About four years have passed since the 2007 Rules was abolished, and it is unknown when a new judicial interpretation will be issued. Meanwhile, numerous contract conflicts cases emerge every day, and the provisions of the 2010 Law on Choice of Law are simple and vague. Therefore, it is understandable that courts continue to consult the 2007 Rules even after its abolishment, and some courts even apply them expressly in making decisions.202 B. Choice-of-Law Rules for Contracts in General The only current conflicts rule for contracts in general is embodied in article 41 of the 2010 Law on Choice of Law, which provides: The parties may choose the law applicable to their contract. In the absence of a choice by the parties, the contract shall be governed by the law of the country where the party whose obligation of performance is characteristic of the contract has his or her habitual residence, or other laws which are most closely connected with the contract.203 This simple provision contains three principles: the principle of party autonomy, the principle of the closest connection, and the principle of characteristic performance. In order to understand the provision, one has to resort to related statutes and judicial interpretations. 1. Internationality of Contract The internationality of contract is an implicit requirement for the application of contract conflicts law.204 However, there is no special rule for determining the internationality of contract, and it should be governed by the general rule for defining a civil relation with foreign elements. The criteria for defining “foreign” are provided in article 1 of the 2012 Judicial Interpretation I: Under any of the following circumstances, the people’s court may determine a civil relation as a civil relation with foreign elements where: (1) either or both parties are foreign citizens, foreign juridical persons, or any other entity or stateless persons; (2) the habitual residence of either or both parties are situated outside the territory of the People’s Republic of China; (3) the subject matter is outside the territory of the People’s Republic of China; (4) the juristic fact that leads to the creation, change, or termination of a civil relation happens outside the territory of the People’s Republic of China; or (5) other circumstances that may be determined as a civil relation with foreign elements.205 This provision contains three elements: the parties, the subject matter, and the juridical fact. It is based on the three-element doctrine of legal relation,206 and further refines the provision of the 1988 Opinions.207 It also adds two additional considerations: habitual residence is added as the primary personal connecting factor in the 2010 Law on Choice of Law,208 and “other circumstances” is included in order to leave ample room for the future development of conflicts law.209 2. Party Autonomy In China, the principle of party autonomy has been employed to deal with contract conflicts for approximately a century. Article 23(1) of the 1918 Act provided that “[t]he formation and effects of obligation created by a juridical act shall be governed by the law determined according to parties’ intention.”210 Since then, the principle has been consistently employed in conflicts rules for contracts in general and regarded as the primary principle for contract conflicts law.211 Although the 2007 Rules was abolished, some of the rules concerning party autonomy were incorporated into the 2012 Judicial Interpretation I.212 It is worth noting that article 41 of the 2010 Law on Choice of Law provides that the parties may choose the law rather than the law of a state.213 It implies that nonstate norms may be chosen by the parties, regardless of whether they are international treaties or international usages.214 There is no special rule with respect to contractual capacity; it should be governed by the general rules on the capacity of natural and juridical persons. For the former, the law of the habitual residence of a natural person shall apply, but the lex actus shall apply if he or she would lack capacity under the law of the habitual residence but have capacity under the lex actus.215 For the latter, the law of the place of registration shall apply, but the law of the principal place of business may apply if the principal place of business of the juridical person is different from the place of registration.216 Four types of limitations are imposed on party autonomy: First, the application of the foreign law chosen by the parties should not prejudice the social and public interests of China.217 Second, for matters or issues governed by mandatory rules of China, the parties may not make a choice of foreign law.218 Third, the parties should not abuse the choice-of-law right in order to evade compulsory or prohibitive provisions of Chinese law.219 Fourth, contracts for foreign investment performed within the territory of China shall be exclusively governed by Chinese law.220 The last limitation merits further analysis. This limitation was first adopted in the 1985 FECL,221 and a similar provision was accepted by the 1999 CL, which provides: “The law of the People’s Republic of China shall govern a contract for a Chinese-foreign equity joint venture, a contract for a Chinese-foreign cooperative joint venture, or a contract for Chinese-foreign joint exploration and development of natural resources which is performed within the territory of the People’s Republic of China.”222 The 2007 Rules further extended the provision to six other types of foreign investment contracts.223 Meanwhile, the Civil Procedure Law stipulates that Chinese courts have exclusive jurisdiction over disputes arising from three kinds of contracts.224 Obviously, the combination of exclusive jurisdiction and application of Chinese law aims to ensure complete control over the activities of foreign investors in China. The rationales behind these provisions mainly lie in two aspects: First, activities of foreign investors occurring in China concern the sovereignty and national economic security of China, and second, these types of contracts have the closest connection with China.225 In the early stage of opening up to the outside world, China was not experienced in regulating foreign investments, thus these provisions were reasonable and necessary to some extent. However, it is now questionable whether such provisions should persist indefinitely, as China has adopted a comprehensive opening-up policy and doctrines such as mandatory rules and public policy are adequate to protect public interests.226 3. The Closest Connection and Characteristic Performance The relationship between the principles of the closest connection and characteristic performance was once clear-cut. Although the principle of the closest connection has the advantage of flexibility, it is too vague to provide precise guidance for courts and has been sharply criticized as a “give-it-up formula”227 and meaning “nothing except, perhaps, that the answer is not ready at hand.”228 In order to objectively determine which place has the closer connection with a contract, the principle of characteristic performance, a concept “coined in the Swiss literature and developed in the practice of the Swiss Federal Tribunal,”229 was first introduced into China in the 1987 Response.230 Mainly under the guidance of this principle, the applicable law was explicitly provided for thirteen types of contracts.231 The principle was also used to provide the applicable law for even more types of contracts in the 2007 Rules.232 In these two judicial interpretations, the principle of characteristic performance was employed to determine the place that has the closest connection with the contract, i.e., the place where the characteristic performer has his or her domicile or place of business. But such a determination is a presumption and it may be rebutted if there is another place which has a closer connection with the contract. The 2010 Law on Choice of Law incorporates the principle of characteristic performance in a statutory provision, but juxtaposes it with the principle of the closest connection.233 Thus, the relationship between the two principles has become blurred and confusing. The word “or” in article 41 demonstrates that courts have discretion in selecting either principle to determine the applicable law.234 In judicial practice, courts often refer to any one of them, depending on which one would lead to the application of Chinese law.235 The new provision has been criticized by some Chinese commentators as a step backwards in codifying contract conflicts law.236 C. Choice-of-Law Rules for Particular Types of Contracts 1. Consumer Contracts After extensive debate and repeated exhortation by academics for many years,237 a special statutory choice-of-law rule for consumer contracts finally came into being. Article 42 of the 2010 Law on Choice of Law provides: A consumer contract is governed by the law of the place where the consumer has his or her habitual residence. If the consumer makes a choice of the law of the place where the goods or services are provided, or the business operator does not pursue any related commercial activity in the place where the consumer has his or her habitual residence, the law of the place where the goods or services are provided shall apply.238 In contrast to article 56 of the proposed draft by the CSPIL,239 the parties are completely deprived of the right to make a choice of law, although such a right can be unilaterally exercised by the consumer and his or her choice is limited to the law of the place where the goods or services are provided. The purpose of this provision is twofold. One is to protect the weaker party, i.e., the consumer.240 The consumer may choose a law which is more beneficial to him or her, and in the absence of such a choice, the law of his or her habitual residence shall apply. The other purpose is to protect the legitimate expectations of the business operator.241 If the business operator does not pursue any related commercial activity in the place of the consumer’s habitual residence, then he or she could not expect to be governed by the law of that place, and the law of the place where the goods or services are provided should apply. In conclusion, this provision endeavors to balance the interests of the consumer and those of the business operator. However, there are several unresolved issues. First, no definition of a consumer contract is provided.242 The “consumer contract” is not an autonomous concept; it is necessary to clearly determine who can be treated as an eligible consumer or professional.243 Although there is a definition of consumer in domestic law,244 it is doubtful whether this definition can be used in conflicts law. Second, it is unclear whether article 42 of the 2010 Law on Choice of Law should cover all kinds of consumer contracts. Unlike the provisions of the Rome I Regulation, some particular kinds of contracts, such as contracts of carriage, insurance contracts, and contracts relating to a right in rem in immovable property, are not excluded.245 Third, it is difficult to determine if a business operator pursues “any related commercial activity.” For instance, should the mere fact that the consumer has access to an operator’s website be treated as a decisive factor?246 No answer for such questions can be found. Finally, this provision does not satisfactorily deal with the problem of whether the consumer can effectively make a choice of law as a weaker party. Because of the language barrier and the lack of knowledge of foreign law, it might be impractical at best, and impossible at worst, for most consumers to choose a law which is more beneficial to them. 2. Employment Contracts As in the conflicts law for consumer contracts, no special choice-of-law rule for employment contracts had been provided in any statute prior to the 2010 Law on Choice of Law, and it was neglected even in the Draft Civil Code.247 Fortunately, the significance of such a rule was finally realized by academics and it first appeared in the proposed draft of the CSPIL.248 In article 57 of the proposed draft, the principle of protection of the weaker party was fully reflected.249 However, the proposed article was not completely accepted by the legislature. Article 43 of the 2010 Law on Choice of Law provides: An employment contract is governed by the law of the place where the employee carries out his or her work or, failing to determine the place thereof, the law of the principal place of business of the employer. The labor dispatch may also be governed by the law of the place where the labor is dispatched.250 Compared with the proposed article in the CSPIL draft, this provision does not grant the parties the right to make a choice of law, and the phrase “favorable to the employee” has disappeared.251 Considering that the law of the place where the employee carries out his or her work or the place of the principal place of business of the employer may not be beneficial to the employee “in any situation,” it is difficult to conclude that such a provision really reflects the principle of protection of the weaker party.252 In contrast to Article 8 of the Rome I Regulation, the flaws of the above Chinese provision seem more obvious. First, the Chinese provision does not distinguish between individual employment contracts and collective employment contracts.253 A trade union is generally not treated as a weaker party in negotiating with the employer,254 and it is unnecessary to adopt a special conflicts rule for collective employment contracts.255 Therefore, the Chinese provision should expressly limit its scope to individual employment contracts. Second, the meaning of “the place where the employee carries out his or her work” is ambiguous. An employee may work in several countries for varying lengths of time. Thus, qualifiers, such as “habitually” or “from which,” seem necessary to determine the place of work.256 Finally, the Chinese provision leaves no room for the principle of the closest connection and its inflexibility in this regard may lead to injustice in special cases.257 The rule in article 43 on labor dispatch is full of Chinese characteristics and worthy of further analysis. A labor dispatch arrangement involves three parties: a dispatching company, dispatched employees and a host employer, and two contracts—an employment contract between the dispatching company and the dispatched employees, and a dispatch contract between the dispatching company and the host employer.258 However, a question arises as to the meaning of “labor dispatch.” Does it cover the two contracts mentioned above or does it only refer to the employment contract between the dispatching company and the dispatched employees? The parties to a dispatch contract usually have equivalent bargaining power and therefore the conflicts rule for contracts in general should apply. Under article 43, the employment contract between a dispatching company and dispatched employees should be governed by the law of the place where the employee carries out his or her work or, failing that, the law of the principal place of business of the employer or the law of the place where the labor is dispatched.259 IV. Choice-of-Law Rules for Torts Choice-of-law rules for torts are scattered throughout three statutes: the 2010 Law on Choice of Law, the 1992 ML, and the 1995 CAL. Prior to the 2010 Law, article 146 of the 1986 GPCL provided the basic rules for torts in general, and contained the lex loci delicti rule, the common domicile or nationality exception, and the double actionability rule.260 This article has played an important role in the development of conflicts law for torts in China. On the one hand, it retained the main elements of article 25 of the 1918 Act (the lex loci delicti and double actionability rules).261 On the other hand, it significantly influenced the enactments of article 273 of the 1992 ML and article 189 of the 1995 CAL. However, the defects of article 146 of the 1986 GPCL were noticeable. At least from the wording, its scope of application was limited to compensation, and other issues relating to torts were not covered. The double actionability rule became obsolete after it was generally abolished in 1995 in the United Kingdom, where the rule had originated.262 Therefore, article 146 of the 1986 GPCL was expressly repealed and replaced by article 44 of the 2010 Law on Choice of Law. The choice-of-law rules for particular torts in the 1992 ML and the 1995 CAL remain intact because they are special provisions and thus applicable under article 2 of 2010 Law on Choice of Law.263 In addition to choice-of-law rules for torts in general, the 2010 Law on Choice of Law provides special choice-of-law rules for product liability and the infringement of personality rights. These rules will be discussed in detail below. A. Choice-of-Law Rules for Torts in General As the current choice-of law provision for torts in general, article 44 of the 2010 Law on Choice of Law provides: Tort liability is governed by the law of the place of the tort. If the parties have a common habitual residence, the law of the common habitual residence shall apply. If the parties make a choice of law by agreement after the tortious act occurs, the law chosen by the parties shall apply.264 This provision is different from article 146 of the 1986 GPCL in at least four respects. First, the scope of application is extended from compensation to tort liability. Second, habitual residence replaces nationality and domicile as the personal connecting factor. Third, the double actionability rule is abandoned. Finally, the principle of party autonomy is introduced into tort conflicts law. In contrast to Article 4 of the European Regulation on the Law Applicable to Non-contractual Obligations (Rome II Regulation),265 article 44 of the 2010 Law on Choice of Law does not adopt the principle of the closest connection as an escape clause, and the article seems inflexible to some extent. Furthermore, some parts of article 44 are ambiguous and need to be further analyzed, as I will do below. 1. Lex Loci Delicti Rule As mentioned above, the lex loci delicti rule has been consistently adopted as a basic rule for torts.266 Although the rule seems simple, it is difficult to ascertain the meaning of “the place of the tort,” and there are various solutions in the codifications around the world.267 Article 187 of the 1988 Opinions provides that the place of the tort included the place of the tortious act and the place of damage, and the court could choose either of them where they differed.268 This judicial interpretation was intended to clarify the locus delicti rule in article 146 of the 1986 GPCL, and should cease to have binding force since article 146 itself was repealed.269 Some Chinese commentators have suggested that the SPC should embrace the favor laesi principle in future judicial interpretations for tort conflicts law.270 2. Common Habitual Residence Exception At least two aspects distinguish the common habitual residence exception in the 2010 Law on Choice of Law from that in the Rome II Regulation. Whereas this exception is subject to the principle of the closest connection under the Rome II Regulation,271 such a limitation does not exist in the 2010 Law on Choice of Law, and the law of the common habitual residence shall apply whenever the parties have a common habitual residence.272 The Chinese rule provides that the law of the common habitual residence applies to all issues relating to tort liability, including the issues of conduct regulation and loss allocation.273 In contrast, Article 17 of the Rome II Regulation requires that “account shall be taken” of the “rules of safety and conduct.”274 A comparison with the American rules also demonstrates that the Chinese common habitual residence exception is rather categorical. The distinction between conduct-regulation rules and loss-distribution rules has been widely accepted in the United States.275 The issue of conduct regulation is usually governed by the law of the place of the tort, for this law has “a predominant, if not exclusive, concern” about the standards of conduct, whereas the issue of loss distribution is usually governed by the law of common domicile, for this law cares about “the benefits and the burdens” of the parties.276 This distinction is considered as “one of the major breakthroughs in American conflicts thought” and “one of its major contributions to international conflicts thought.”277 Obviously, the Chinese legislature did not learn from the American experience. However, Chinese commentators have suggested that the SPC should embrace this American contribution in any future judicial interpretation.278 3. Party Autonomy The adoption of the principle of party autonomy is a breakthrough in the development of Chinese tort conflicts law. The feasibility of allowing the parties to make a choice of law for torts was discussed as early as the 1980s.279 The principle was first introduced in article 116 of the Model Law of Private International Law by the CSPIL in 2000, but the law chosen by the parties was limited to the lex fori.280 This provision was followed by article 81 of book nine of the Draft Civil Code.281 However, the limitation of the lex fori was deleted from the bill on its second reading at the Standing Committee of the eleventh NPC in 2010.282 Under article 44 of the 2010 Law on Choice of Law, the parties may freely choose any law, including the lex fori, even if the law has no factual connection with the tort.283 However, the choice can be made only after the tort has occurred.284 This timing requirement follows the prevailing legislative trend around the world.285 Unfortunately, article 44 does not require that the choice not prejudice the rights of third parties as required by the Rome II Regulation.286 B. Choice-of-Law Rules for Particular Types of Torts 1. Product Liability In recent years, Chinese courts have decided numerous cases relating to product liability in which some defendants were renowned transnational companies.287 The lack of special choice-of-law rules for such cases embarrassed the courts who had difficulty finding a proper law.288 In response to the urgent practical need, the conflicts rule for product liability has been introduced for the first time. Article 45 of the 2010 Law on Choice of Law provides: Product liability is governed by the law of the place where the victim has his or her habitual residence. The law of the tortfeasor’s principal place of business or the law of the place of injury shall apply if the victim makes a choice of the law of the tortfeasor’s principal place of business or the law of the place of injury, or the tortfeasor does not pursue any related commercial activity in the place where the victim has his or her habitual residence.289 This special rule aims to strike a reasonable balance between protection of the victim and the foreseeability of the tortfeasor. On the one hand, it favors the victim to apply the law of his or her habitual residence with which he or she is familiar. Furthermore, the victim enjoys the unilateral right of choosing the law of the tortfeasor’s principal place of business or the law of the place of injury if he or she is not satisfied with the result of applying the law of his or her habitual residence. On the other hand, it favors the tortfeasor in that it provides that if the tortfeasor does not pursue any related commercial activity in the victim’s habitual residence, the law of the victim’s habitual residence shall not apply even though this law is beneficial to the victim. It is questionable whether the aim of article 45 could be achieved. The victim’s interests might weigh much more heavily than those of the tortfeasor.290 The victim is given broad freedom to make a choice among three different laws. The mere method left for the tortfeasor to defeat the application of the law of the victim’s habitual residence is to prove that he or she does not engage in any business commercial activity in that place. In addition, it is worth noting that the phrase “pursue any related commercial activity” is different from that of “reasonably foresee the marketing of the product” of the Rome II Regulation.291 It is possible that the tortfeasor pursues related commercial activity in the place of the victim’s habitual residence, but that he or she cannot foresee the marketing of his or her products by another importer.292 Finally, in contrast to Article 5 of the Rome II Regulation, the Chinese special rule leaves little discretion to courts to strive for justice in individual cases, for article 45 is not subject to the common habitual residence exception or the closer connection exception.293 2. Infringement of Personality Rights Probably due to the complexity of conflicts law relating to violations of rights of personality, the Rome II Regulation refrains from providing any rule for this area and only directs the European Commission to make a study on the situation.294 In contrast, the Chinese legislature enacted a simple choice-of-law rule for the infringement of personality rights. Article 46 of the Law on Choice of Law provides: “Infringement of such personality rights as the right to one’s name, right to one’s image, right of reputation, or right of privacy, via the Internet or by other approaches, is governed by the law of the place where the victim has his or her habitual residence.”295 This provision is congruent with the choice-of-law rule for the content of personality rights, and both of them adopt habitual residence as the mere connecting factor.296 In comparison with article 139 of the Swiss PIL Act, the Chinese provision does not allow the victim to make a choice, even though the law of the victim’s habitual residence is not always favorable to the victim.297 In addition, the foreseeability of the tortfeasor is not a condition for the determination of the applicable law under the Chinese provision.298 Conclusion After a century of development, the conflicts codification in China has reached a new stage. The freestanding statute, the 2010 Law on Choice of Law, and conflicts rules scattered throughout other statutes, as well as several judicial interpretations, can be used to deal with most, if not all, conflicts issues in practice.299 But inconsistency and overlap between the conflicts rules in different statutes exist, and the goal to enact a comprehensive code of private international law in China has not been realized.300 Fortunately, the codification of the civil law was initiated again on April 10, 2015,301 and commentators have suggested China seize this historic opportunity to codify a new conflicts law statute that would be compatible with the civil code.302 Although some advanced conflicts principles and rules have been introduced in China, many conflicts rules are ambiguous and difficult to apply in practice.303 In the absence of detailed provisions to ensure that the current conflicts rules can be effectively applied, it is possible that they will remain law in the books only. In China, the vague conflicts rules depend on judicial interpretations to become specific and applicable.304 The first judicial interpretation for chapter one of the 2010 Choice of Laws was promulgated in 2012.305 However, more judicial interpretations for other chapters are still underway. The SPC needs to work much quicker to keep up with and resolve the challenges posed by judicial practice. In dealing with the “perennial tension between the goals of legal certainty and flexibility,”306 China’s legislature is becoming more skilled and confident. Compared with the conflicts rules prior to the 2010 Law on Choice of Law, the new rules have been enacted with more flexibility: the principle of the closest connection may be employed in all areas as a gap-filling principle; the principle of party autonomy has ascended to the status of a general principle of law, and parties enjoy more freedom in making a choice of law; nearly 80% of particular conflicts rules in the 2010 Law on Choice of Law are alternative-reference rules.307 On the other hand, in order to enhance legal certainty, renvoi is completely excluded, and only the lex fori shall apply to characterization and to contracts for foreign investment to be performed in China. However, legislation has moved to the extreme of flexibility in some areas, for instance, when the parties are granted the freedom of choice of law for rights in rem in movable property, while some conflicts rules are rather conservative in other areas, such as the conflicts rule for contracts for foreign investment to be performed in China. China’s conflicts law mainly tracks the civil law tradition. But some conflicts rules are borrowed from Anglo-American law, such as the conflicts rules for civil capacity of a juridical person and for intestate succession. Furthermore, the latest developments in the procedural infrastructure for applying foreign law are worth noting. Several years ago, a Chinese commentator suggested that the case law system should be introduced into China in the area of conflicts law and that a separate court system should be established in order to better deal with cases involving foreign elements.308 In 2010, the SPC formally established the regime of case guidance.309 The SPC determines and uniformly publishes guiding decisions which are typical, complicated, and have a wide influence on Chinese society.310 Although the decisions do not have the same function as that of case law in common law countries, the people’s courts at all levels are required to use the guiding decisions as a reference.311 This regime can be treated as a quasi case law system. In 2015, the SPC introduced another common law regime, that of circuit courts.312 Can the regimes of case guidance and circuit courts better cope with the challenges in the area of conflicts law and promote conflicts codification in China? The answer is unclear given the novelty of both in China Nevertheless, China has embarked on a journey toward that goal even though there is still a long way to go. I would like to express my gratitude to Peter Hay, Patrick J. Borchers, Xinqiang Sun, Peter McEleavy, Hanna Wei, and Yen-Chiang Chang for their insightful advice and comments. I am indebted to Mr. Tianyu Wang and Ms. Hao Zhou for their excellent research assistance. This research was sponsored by the National Fund for Philosophy and Social Science of the People’s Republic of China (PRC) (Project No.12 BFX 138), the Humanities and Social Sciences Planning Fund of the Ministry of Education of the PRC (Project No. 11 YJA 820091), and the Scholarship Program of the Max Planck Institute for Comparative and International Private Law. Footnotes 1. In this Article, China only refers to Mainland China. SeeGuoji Sifa (国际私法) [Private International Law] 341–45 (Depei Han (韩德培) & Xiao Yongping (肖永平) eds., 3d ed. 2014). 2. This Article only discusses choice-of-law rules. For the scope of conflicts law, see Peter Hay, Patrick J. Borchers & Symeon C. Symeonides, Conflict of Laws 3 (5th ed. 2010). 3. SeeSymeon C. Symeonides, Codifying Choice of Law Around the World: An International Comparative Analysis 1, 9–13 (2014). 4. SeePrivate International Law, supra note 1, at 54–55. 5. Zhonghua Renmin Gongheguo Shewai Minshi Guanxi Falü Shiyong Fa (中华人民共和国涉外民事关系法律适用法) [Law on Choice of Law for Foreign-Related Civil Relationships] (adopted by the Standing Comm. Nat’l People’s Cong., Oct. 28, 2010, effective Apr. 1, 2011), reprinted in 1 Chinese J. Comp. L. 185 (2013) [hereinafter 2010 Law on Choice of Law]. 6. SeeSymeonides, supra note 3, at 13; Guangjian Tu, China’s New Conflicts Code: General Issues and Selected Topics, 59 Am. J. Comp. L. 563, 564 (2011) (regarding the 2010 Law on Choice of Law as “the first legislation in the history of China to systematically codify conflict of laws rules”). 7. The three articles are articles 146 and 147 of the General Principles of the Civil Law, and article 36 of the Law of Succession. See 2010 Law on Choice of Law, supra note 5, art. 51. 8. Zhonghua Renmin Gongheguo Minfa Tongze (中华人民共和国民法通则) [General Principles of the Civil Law] (promulgated by the Standing Comm. Nat’l People’s Cong., Apr. 16, 1986, effective Jan. 1, 1987), reprinted inComparative Conflict of Laws: Conventions, Regulations, and Codes 316 (Peter Hay, Russell J. Weintraub & Patrick J. Borchers eds., 2009) [hereinafter General Principles of the Civil Law]. 9. See Mo Zhang, Codified Choice of Law in China: Rules, Processes and Theoretic Underpinnings, 37 N.C. J. Int’l L. & Com. Reg. 83, 86 (2011). 10. Zhonghua Renmin Gongheguo Jicheng Fa (中华人民共和国继承法) [Law of Succession] (promulgated by the Standing Comm. Nat’l People’s Cong., Apr. 10, 1985, effective Oct. 1, 1985), art. 36, CLI.1.2368(EN) (Lawinfochina). 11. SeeMorris: The Conflict of Laws 463 (David McClean & Verónica Ruiz Abou-Nigm eds., 8th ed. 2012). 12. Zhonghua Renmin Gongheguo Shewai Jingji Hetong Fa (中华人民共和国涉外经济合同法) [Foreign Economic Contract Law] (promulgated by the Standing Comm. Nat’l People’s Cong., Mar. 21, 1985, effective July 1, 1985) (repealed 1999), art. 5, CLI.1.2333(EN) (Lawinfochina). 13. Zhonghua Renmin Gongheguo Haishang Fa (中华人民共和国海商法) [Maritime Law] (promulgated by the Standing Comm. Nat’l People’s Cong., Nov. 7, 1992, effective July 1, 1993), arts. 268–76, CLI.1.6023(EN) (Lawinfochina). 14. Zhonghua Renmin Gongheguo Minyong Hangkong Fa (中华人民共和国民用航空法) [Civil Aviation Law] (promulgated by the Standing Comm. Nat’l People’s Cong., Oct. 30, 1995, effective Mar. 1, 1996), arts. 184–90, CLI.1.13135(EN) (Lawinfochina). 15. Zhonghua Renmin Gongheguo Piaoju Fa (中华人民共和国票据法) [Negotiable Instruments Law] (promulgated by the Standing Comm. Nat’l People’s Cong., May 10, 1995, effective Jan. 1, 1996), arts. 94–101, CLI.1.54991(EN) (Lawinfochina). 16. SeePrivate International Law, supra note 1, at 287–92. 17. Zhonghua Renmin Gongheguo Hetong Fa (中华人民共和国合同法) [Contract Law] (promulgated by the Standing Comm. Nat’l People’s Cong., May 15, 1999, effective Oct. 1, 1999), CLI.1.21651(EN) (Lawinfochina). For comments on the 1999 CL, see Mo Zhang, Freedom of Contract with Chinese Legal Characteristics: A Closer Look at China’s New Contract Law, 14 Temple Int’l & Comp. L.J. 237 (2000). 18. Waiguoren Zai Zhonghua Renmin Gongheguo Shouyang Zinü Dengji Banfa (外国人在中华人民共和国收养子女登记办法) [Measures for Registration of Adoption of Children by Foreigners in the People’s Republic of China] (promulgated by the St. Council, May 25, 1999, effective May 25, 1999), CLI.2.23061(EN) (Lawinfochina). 19. Article 150 of the 1986 General Principles of the Civil Law is obviously different from article 5 of the 2010 Law on Choice of Law, and the same is true of the relationship between article 148 of the 1986 General Principle of the Civil Law and article 29 of the 2010 Law on Choice of Law. 20. 2010 Law on Choice of Law, supra note 5, art. 2. 21. SeePrivate International Law, supra note 1, at 1–2. 22. SeeFali Xue (法理学) [Jurisprudence] 112 (Sun Guohua (孙国华) & Zhu Jingwen (朱景文) eds., 4th ed. 2015); Fali Xue (法理学) [Jurisprudence] 63 (Zhang Wenxian (张文显) ed., 4th ed. 2011). 23. Zhonghua Renmin Gongheguo Lifa Fa (中华人民共和国立法法) [Legislation Law] (promulgated by the Standing Comm. Nat’l People’s Cong., Mar. 15, 2000, effective July 1, 2000) (amended Mar. 15, 2015), CLI.1.245693(EN) (Lawinfochina). 24. Id. art. 104. 25. See Li Wei, Judicial Interpretation in China, 5 Willamette J. Int’l L. & Disp. Res. 87, 100 (1997). 26. William L. Prosser, Interstate Publication, 51 Mich. L. Rev. 959, 971 (1953). 27. SeeFriedrich K. Juenger, Choice of Law and Multistate Justice 1 (1993). 28. In a speech at the 2010 Annual Meeting of the Chinese Society of Private International Law, the Vice Dean of the Legislative Affairs Commission of the Standing Committee of National People’s Congress openly expressed such an idea. 29. Zuigao Renmin Fayuan Guanyu Shenli Shewai Minshi Huo Shangshi Hetong Jiufen Anjian Falü Shiyong Ruogan Wenti De Guiding (最高人民法院关于审理涉外民事或商事合同纠纷案件法律适用若干问题的规定) [Rules of the Supreme People’s Court on the Relevant Issues Concerning the Application of Law in Hearing Foreign-Related Contractual Dispute Cases in Civil and Commercial Matters] (promulgated by the Sup. People’s Ct., July 23, 2007, effective Aug. 8, 2007), reprinted in Comparative Conflict of Laws: Conventions, Regulations, and Codes, supra note 8, at 312. 30. SeePrivate International Law, supra note 1, at 24–25. 31. See Li, supra note 25, at 1–2 (commenting generally on the status and function of judicial interpretations). 32. See Symeon C. Symeonides, General Report, inPrivate International Law at the End of the 20th Century: Progress or Regress? 3, 7 (Symeon C. Symeonides ed., 1999). 33. See, e.g., Bi Ya Di Su Dong Ai Ma Er Deng (比亚迪诉东埃马尔等) [Francklin Beyard v. Don Mackyta & Ikenguissi Ayessacarl] (Nanjing Gulou District People’s Ct. May 20, 2014), CLI.C.17619688 (Chinalawinfo) (directly applying Chinese substantive law without considering that both the plaintiff and the defendants were from Africa and therefore article 46 of the 2010 Law on Choice of Law should apply); Chen Ming, Xu Yanfang, Chen Jie Su Shanhai Xiecheng Guoji Lüxingshe Youxian Gongsi Lüyou Hetong (陈明、徐炎芳、陈洁诉上海携程国际旅行社有限公司旅游合同) [Chen Ming, Xu Yanfang, Chen Jie v. Shanghai Ctrip Int’l Travel Agency, Co.] 2015 Sup. People’s Ct. Gaz. 43 (Shanghai No.1 Intermediate People’s Ct. 2014) (directly applying Chinese substantive law without considering part of performance of the travel contract occurred in Europe and therefore article 41 of the 2010 Law on Choice of Law should apply). 34. See Huang Jin et al., Chinese Judicial Practices in Private International Law: 2006, 8 Chinese J. Int’l L. 715, 725 (2009) (indicating that 96% of fifty cases applied Chinese law, and foreign law was “seldom invoked”). 35. See Tongchuan Xinguang Lüye Youxian Gongsi Su Zhongguo Yinhang (Xianggang) Youxian Gongsi (铜川鑫光铝业有限公司诉中国银行(香港)有限公司) [Tongchuan Xinguang Aluminum, Co. v. Bank of China (H.K.), Co.] (Guangdong High People’s Ct. May 8, 2004), CLI.C.32275 (Chinalawinfo). 36. Guowu Yuan Xinwen Bangong Shi (国务院新闻办公室) [The State Council Information Office of the People’s Republic of China], “Zhongguo Tese Shehui Zhuyi Falü Tixi” Bai Pi Shu (《中国特色社会主义法律体系》白皮书) [White Paper on the Socialist Legal System with Chinese Characteristics], CLI.WP.3907 (Chinalawinfo). 37. SeeHuo Zhengxin, Private International Law 77 (2d ed. 2015) (citing and translating Li Hongzhang’s lamenting words, who was then Prime Minister of the Qing Dynasty). 38. See Mo Zhang, The Socialist Legal System with Chinese Characteristics: China’s Discourse for the Rule of Law and a Bitter Experience, 24 Temple Int’l & Comp. L.J. 1, 27–32 (2010). 39. See, e.g., Private International Law, supra note 1, at 53; Ma Hanbao (马汉宝), Guoji Sifa: Zonglun Gelun (国际私法:总论各论) [Private International Law: General Part and Special Parts] 20–21 (3d ed. 2014). 40. Qisheng He, China’s Private International Law (1978–2008), 5 Frontiers L. China 188, 196 (2010). 41. See, e.g., James A.R. Nafziger, The Louisiana and Oregon Codifications of Choice-of-Law Rules in Context, 58 Am. J. Comp. L. 165, 173 (2010). 42. SeeQian Daqun (钱大群), Tanglü Yizhu (唐律译注) [Interpretations of and Comments on the Tang Code] 63 (1988). 43. SeeZhangsun Wuji (长孙无忌) et al., Tanglü Shuyi (唐律疏议) [A Commentary on the Tang Code] 133 (Liu Junwen (刘俊文) ed., Zhonghua Shuju (中华书局) [Zhonghua Book, Co.] 1983); The Tʼang Code 252 (Wallace Johnson trans., 1997); Dai Yanhui (戴炎辉), Tanglü Tonglun (唐律通论) [On the General Provisions of the Tang Code] 433 (2010). 44. Morris: The Conflict of Laws, supra note 11, at 2. 45. See Zhang, supra note 9, at 86. 46. SeeQian Daqun (钱大群), Tanglü Yu Tangdai Fazhi Kaobian (唐律与唐代法制考辨) [Research on the Tang Code and the Legal System of the Tang Dynasty] 37 (2009). 47. Martin Wolff, Private International Law 20 (1945). 48. Wang Tieya, International Law in China: Historical and Contemporary Perspectives, 221 Recueil des cours 195, 216–17 (1990). 49. SeeHuo, supra note 37, at 78. 50. See Ma, supra note 39, app. 3 at 375–77. 51. Huo, supra note 37, at 78–79. 52. See, e.g., Hessel E. Yntema, “Autonomy” in Choice of Law, 1 Am. J. Comp. L. 341, 346–47 (1952) (citing articles 23 and 26 of the 1918 Act). 53. Ruan Yicheng (阮毅成), Zhongguo Guoji Sifa Zhidu De Jianli (中国国际私法制度的建立) [The Establishment of China’s Private International Law System], inGuoji Sifa Lunwen Xuanji (国际私法论文选辑) [Selected Articles of Private International Law] 2 (Ma Hanbao (马汉宝) ed., 1984). 54. SeeMa, supra note 39, at 24. 55. Id. at 23. 56. Id. at 24. 57. See Mao Tse-Tung, Introducing a Co-operative, inSelected Readings from the Works of Mao Tse-Tung 403 (Editorial Comm. for Selected Readings from the Works of Mao Tse-Tung ed., 1967). 58. See Zhang, supra note 38, at 33–34. 59. See Zhang, supra note 9, at 86. 60. See Tung-pi Chen, Private International Law of the People’s Republic of China: An Overview, 35 Am. J. Comp. L. 445, 445 (1987). 61. See Zhang, supra note 38, at 34. 62. See Chen, supra note 60, at 446–47. 63. SeeHuang Jin (黄进), Guoji Sifa (国际私法) [Private International Law] 164 (1999). 64. Guanyu Guanche Zhixing “Zhonghua Renmin Gongheguo Minfa Tongze” Ruogan Wenti De Yijian (Shixing) (关于贯彻执行《中华人民共和国民法通则》若干问题的意见(试行)) [Opinions of the Supreme People’s Court on Several Issues Concerning the Implementation of the General Principles of the Civil Law (for Trial Implementation)] (promulgated by the Sup. People’s Ct., Apr. 2, 1988, effective Apr. 2, 1988), reprinted inComparative Conflict of Laws: Conventions, Regulations, and Codes, supra note 8, at 317 [hereinafter 1988 Opinions]. 65. See supra text accompanying note 17. 66. SeeHuang, supra note 63, at 165. 67. See Chen Weizuo, The Necessity of Codification of China’s Private International Law and Arguments for a Statute on the Application of Laws as the Legislative Model, 1 Tsinghua China L. Rev. 1, 12–14 (2009). 68. Guo Yujun (郭玉军) & Xu Jintang (徐锦堂), Cong Tongji Fenxi Kan Woguo Shewai Minshang Shi Shenpan Shijian De Fazhan (从统计分析看我国涉外民商事审判实践的发展) [A Statistical Analysis of Judicial Practices on Foreign-Related Cases in Civil and Commercial Matters in China], 11 Zhongguo Guoji Sifa Yu Bijiao Fa Niankan (中国国际私法与比较法年刊) [Chinese Y.B. Priv. Int’l & Comp. L.] 122, 124 n.2 (2008). 69. See generally Weidong Zhu, China’s Codification of the Conflict of Laws: Publication of a Draft Text, 3 J. Priv. Int’l L. 283 (2007). 70. Id. at 285. 71. Zuigao Renmin Fayuan Guanyu Shenli Shewai Minshi Huo Shangshi Hetong Jiufen Anjian Falü Shiyong Ruogan Wenti De Guiding (最高人民法院关于审理涉外民事或商事合同纠纷案件法律适用若干问题的规定) [Rules of the Supreme People’s Court on the Relevant Issues Concerning the Application of Law in Hearing Foreign-Related Contractual Dispute Cases in Civil and Commercial Matters] (promulgated by the Sup. People’s Ct., July 23, 2007, effective Aug. 8, 2007), reprinted in Comparative Conflict of Laws: Conventions, Regulations, and Codes, supra note 8, at 312. 72. Zhengxin Huo, An Imperfect Improvement: The New Conflict of Laws Act of the People’s Republic of China, 60 Int’l & Comp. L.Q. 1065, 1068 (2011). 73. Id. at 1069. 74. See Weidi Long, The First Choice-of-Law Act of China’s Mainland: An Overview, 2012 Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 273, 274. 75. See Huo, supra note 72, at 1069. 76. See Hu Kangsheng (胡康生), Guanyu Zhonghua Renmin Gongheguo Shewai Minshi Guanxi Falü Shiyong Fa Cao’an Zhuyao Wenti De Huibao (关于《中华人民共和国涉外民事关系法律适用法(草案)》主要问题的汇报) [Report on Main Questions About the Law on Choice of Law for Foreign-Related Civil Relationships (Draft)], 2010 Standing Comm. Nat’l People’s Cong. Gaz. 643, 644. 77. Zuigao Renmin Fayuan Guanyu Shiyong Zhonghua Renmin Gongheguo Shewai Minshi Guanxi Falü Shiyong Fa Ruogan Wenti De Jieshi Yi (最高人民法院关于适用《中华人民共和国涉外民事关系法律适用法》若干问题的解释(一)) [Interpretation I by the Supreme People’s Court on Issues Concerning the Application of the Law on Choice of Law for Foreign-Related Civil Relationships] (promulgated by the Sup. People’s Ct., Dec. 28, 2012, effective Jan. 7, 2013), CLI.3.192329(EN) (Lawinfochina) [hereinafter 2012 Judicial Interpretation I]. 78. See Long, supra 74, at 274. 79. See Huo, supra 72, at 1068–69. 80. See Hu, supra note 76, at 643–44. 81. 2010 Law on Choice of Law, supra note 5, art. 3 (translated by author). 82. See, e.g., Zhonghua Renmin Gongheguo Hetong Fa (中华人民共和国合同法) [Contract Law] (promulgated by the Standing Comm. Nat’l People’s Cong., May 15, 1999, effective Oct. 1, 1999), art. 126, CLI.1.21651(EN) (Lawinfochina). 83. See Symeonides, supra note 32, at 40. 84. 2012 Judicial Interpretation I, supra note 77, art. 8(2). 85. Id. art. 9. 86. Id. art. 7. 87. Id. art. 8(1). 88. The word “unrestricted” here and in the following text of this paragraph means that the law chosen by the parties is not limited. 89. See 2010 Law on Choice of Law, supra note 5. 90. See Wang Shengming (王胜明), “Shewai Minshi Guanxi Falü Shiyong Fa” Zhidao Sixiang (《涉外民事法律关系适用法》指导思想) [Guiding Principles of the Act of Application of Law for Foreign Relations], 1 Zhengfa Luntan (政法论坛) [Trib. Pol. Sci. & L.] 2, 2 (2012) (the author was then the Vice Dean of the Legal Affairs Commission of the NPC Standing Committee) (translated by author). 91. SeeGuoji Sifa Zhuanlun (国际私法专论) [A Treatise on Issues of Private International Law] 19 (Depei Han (韩德培) ed., 2004). 92. See Guo & Xu, supra note 68, at 141. 93. See 2010 Law on Choice of Law, supra note 5. 94. Bundesgesetz über das Internationale Privatrecht [IPRG] [Federal Law on Private International Law] Dec. 18, 1987, SR 291, art. 104. 95. See, e.g., Song Xiao (宋晓), Yisi Zizhi Yu Wuquan Chongtu Fa (意思自治与物权冲突法) [Party Autonomy and Conflicts Law in Real Rights], 1 Huanqiu Falü Pinglun (环球法律评论) [Global L. Rev.] 77 (2012). 96. Zhonghua Renmin Gongheguo Shewai Jingji Hetong Fa (中华人民共和国涉外经济合同法) [Foreign Economic Contract Law] (promulgated by the Standing Comm. Nat’l People’s Cong., Mar. 21, 1985, effective July 1, 1985), art. 5, CLI.1.2333(EN) (Lawinfochina). 97. General Principles of the Civil Law, supra note 8, art. 148. 98. 1988 Opinions, supra note 64, arts. 182–83, 185, 192. 99. See Guo & Xu, supra note 68, at 129. 100. 2010 Law on Choice of Law, supra note 5, art. 2(2). 101. SeeDu Tao (杜涛), Guoji Sifa De Xiandai Hua Jincheng: Zhongwai Guoji Sifa Gaige Bijiao Yanjiu (国际私法的现代化进程:中外国际私法改革比较研究) [The Development of Modern Private International Law: A Comparative Study on Sino-Foreign Reforms of Private International Law] 327 (2007). 102. See Long, supra note 74, at 275. 103. SeeZhonghua Renmin Gongheguo Shewai Minshi Guanxi Falü Shiyong Fa Jianyi Gao Ji Shuoming (中华人民共和国涉外民事关系法律适用法建议稿及说明) [The Proposed Draft of and Comments on the Law on Choice of Law for Foreign-Related Civil Relationships] 11–12 (Huang Jin (黄进) ed., 2011) [hereinafter Proposed Draft of the Law]. 104. Bundesgesetz über das Internationale Privatrecht [IPRG] [Federal Law on Private International Law] Dec. 18, 1987, SR 291, art. 15. 105. See Symeonides, supra note 32, at 36–37. 106. SeeProposed Draft of the Law, supra note 103, at 133. 107. SeePrivate International Law, supra note 1, at 96. 108. See Huang Jin et al., supra note 34, at 725. 109. See Long, supra note 74, at 275. 110. SeeMa, supra note 39, app. 3 at 375–77. 111. Morris: The Conflict of Laws, supra note 11, at 45 (citing Mancini’s argument). 112. Id. at 46. 113. General Principles of the Civil Law, supra note 8, art. 149. 114. SeeHay, Borchers & Symeonides, supra note 2, at 302–04. 115. SeeDicey, Morris & Collins: The Conflict of Laws 144 (C.G.J. Morse et al. eds., 15th ed. 2012). 116. Zhang, supra note 9, at 132. 117. SeeDu Tao (杜涛), Shewai Minshi Guanxi Falü Shiyong Fa Shiping (涉外民事关系法律适用法释评) [Comments on the Law of the People’s Republic of China on Choice of Law for Foreign-Related Civil Relationships] 128 (2011). 118. See Guo & Xu, supra note 68, at 124–25. 119. See 2010 Law on Choice of Law, supra note 5. 120. SeeHay, Borchers & Symeonides, supra note 2, at 299. 121. Id. at 300. 122. 2012 Judicial Interpretation I, supra note 77, art. 15 (translated by author). 123. 1988 Opinions, supra note 64, art. 9 (translated by author). 124. See Zhengxin Huo, Two Steps Forward, One Step Back: A Commentary on the Judicial Interpretation on the Private International Law Act of China, 43 H.K.L.J. 685, 707–08 (2013). 125. SeeDu, supra note 117, at 145–46. 126. 1988 Opinions, supra note 64, art. 184 (translated by author). 127. 2010 Law on Choice of Law, supra note 5, art. 14. 128. SeeDu, supra note 117, at 112–13. 129. General Principles of the Civil Law, supra note 8, art. 142(1) (emphasis added). 130. 1988 Opinions, supra note 64, art. 178(2) (emphasis added). 131. 2010 Law on Choice of Law, supra note 5, art. 2(1). 132. SeeDu, supra note 117, at 113. 133. Id. at 108. 134. See, e.g., Xu Peng (徐鹏), Chongtu Guifan Renyi Xing Shiyong Yanjiu (冲突规范任意性适用研究) [A Study on the Facultative Application of Conflicts Rules] 169–71 (2010). 135. Zuigao Renmin Fayuan Guanyu Shiyong “Shewai Jingji Hetong Fa” Ruogan Wenti De Jieda (最高人民法院关于适用《涉外经济合同法》若干问题的解答) [Response of the Supreme People’s Court Concerning the Application of the Foreign Economic Contract Law] (promulgated by the Sup. People’s Ct., Oct. 19, 1987, effective Oct. 19, 1987) (repealed July 25, 2000), CLI.3.3530(EN) (Lawinfochina). 136. 1988 Opinions, supra note 64, art. 193. 137. See Jiao Yan (焦燕), Woguo Waiguo Fa Chaming Xingui Zhi Jianshi——Ping “Shewai Minshi Guanxi Falü Shiyong Fa” Di Shi Tiao (我国外国法查明新规之检视——评《涉外民事关系法律适用法》第10条) [A Review of the New Rule on the Ascertainment of Foreign Law in China: Focus on Article 10 of the Law on Choice of Law for Foreign-Related Civil Relationships], 2 Qinghua Faxue (清华法学) [Tsinghua L.J.] 163, 165 (2013). 138. Zuigao Renmin Fayuan Guanyu Yinfa “Di Er Ci Quanguo Shewai Shangshi Haishi Shenpan Gongzuo Huiyi Jiyao” De Tongzhi (最高人民法院关于印发《第二次全国涉外商事海事审判工作会议纪要》的通知) [Notice of the Supreme People’s Court on Issuing the Summary of the Second National Meeting on Trial of Commercial and Maritime Cases with Foreign Elements] (promulgated by the Sup. People’s Ct., Dec. 26, 2005, effective Dec. 26, 2005), art. 51, CLI.3.78927 (Chinalawinfo). 139. Id. 140. Zuigao Renmin Fayuan Guanyu Shenli Shewai Minshi Huo Shangshi Hetong Jiufen Anjian Falü Shiyong Ruogan Wenti De Guiding (最高人民法院关于审理涉外民事或商事合同纠纷案件法律适用若干问题的规定) [Rules of the Supreme People’s Court on the Relevant Issues Concerning the Application of Law in Hearing Foreign-Related Contractual Dispute Cases in Civil and Commercial Matters] (promulgated by the Sup. People’s Ct., July 23, 2007, effective Aug. 8, 2007), art. 9(1)(2), reprinted in Comparative Conflict of Laws: Conventions, Regulations, and Codes, supra note 8, at 312. 141. 2010 Law on Choice of Law, supra note 5, art. 10(1) (translated by author). 142. See Lin Yanping (林燕萍) & Huang Yanru (黄艳如), Waiguo Fa Weihe Nanyi Chaming——Jiyu “Shewai Minshi Guanxi Falü Shiyong Fa” Di Shi Tiao De Shizheng Fenxi (外国法为何难以查明——基于《涉外民事关系法律适用法》第10条的实证分析) [Why Foreign Law Is Difficult to Ascertain: A Positive Analysis of Article 10 of the Law on Choice of Law for Foreign-Related Civil Relationships], 10 Faxue (法学) [Law Sci.] 116, 121 (2014). 143. See, e.g., Jiao, supra note 137, at 174. 144. 2012 Judicial Interpretation I, supra note 77, art. 17 (translated by author). 145. Zuigao Renmin Fayuan Guanyu Shiyong “Shewai Jingji Hetong Fa” Ruogan Wenti De Jieda (最高人民法院关于适用《涉外经济合同法》若干问题的解答) [Response of the Supreme People’s Court Concerning the Application of the Foreign Economic Contract Law] (promulgated by the Sup. People’s Ct., Oct. 19, 1987, effective Oct. 19, 1987) (repealed July 25, 2000), art. 2(11), sent. 2, CLI.3.3530(EN) (Lawinfochina); 1988 Opinions, supra note 64, art. 193, sent. 2; Rules of the Supreme People’s Court on the Relevant Issues Concerning the Application of Law in Hearing Foreign-Related Contractual Dispute Cases in Civil and Commercial Matters, July 23, 2007, art. 9(3); 2010 Law on Choice of Law, supra note 5, art. 10(2). 146. See, e.g., Huo, supra note 72, at 1076. 147. See, e.g., Tongchuan Xinguang Lüye Youxian Gongsi Su Zhongguo Yinhang (Xianggang) Youxian Gongsi (铜川鑫光铝业有限公司诉中国银行(香港)有限公司) [Tongchuan Xinguang Aluminum, Co. v. Bank of China (H.K.), Co.] (Guangdong High People’s Ct. May 8, 2004), CLI.C.32275 (Chinalawinfo). 148. See, e.g., Guoji Sifa (国际私法) [Private International Law] 39–42 (Li Shuangyuan (李双元) ed., 2000). 149. 2010 Law on Choice of Law, supra note 5, art. 4. 150. SeeBundesgesetz über das Internationale Privatrecht [IPRG] [Federal Law on Private International Law] Dec. 18, 1987, SR 291, arts. 18–19. 151. See Commission Regulation 593/2008 of the European Parliament and of the Council of 17 June 2008 on the Law Applicable to Contractual Obligations (Rome I), 2008 O.J. (L 177) 6, 10, 13 [hereinafter Rome I Regulation]. 152. Long, supra note 74, at 276. 153. SeeJuenger, supra note 27, at 81. 154. Frank Benedict Vischer, General Course on Private International Law, 232 Recueil des cours 9, 157 (1992-I). 155. Juenger, supra note 27, at 82. 156. 2012 Judicial Interpretation I, supra note 77, art. 10 (translated by author). 157. 2010 Law on Choice of Law, supra note 5, art. 43. 158. See Vischer, supra note 154, at 159. 159. Huang Jin (黄进), Lian Junya (连俊雅) & Du Huanfang (杜焕芳), 2014 Nian Zhongguo Guoji Sifa Shijian Shuping (2014年中国国际私法司法实践述评) [Chinese Judicial Practices in Private International Law: 2014], 18 Zhongguo Guoji Sifa Yu Bijiao Fa Niankan (中国国际私法与比较法年刊) [Chinese Y.B. Priv. Int’l & Comp. L.] 265, 306 (2016). 160. 2010 Law on Choice of Law, supra note 5, art. 8. 161. See Zhu, supra note 69, at 288. 162. Article 9, sentence 2 of the proposed draft by the CSPIL reads: “In the event that the civil relation with foreign elements cannot be properly characterized under the law of the forum, it may be determined by reference to the applicable law.” Proposed Draft of the Law, supra note 103, at 29 (translated by author). 163. Cf.Dicey, Morris & Collins: The Conflict of Laws, supra note 115, at 41. 164. See, e.g., Huo, supra note 72, at 1075. 165. SeeDu, supra note 117, at 96. 166. SeeHay, Borchers & Symeonides, supra note 2, at 148–49. 167. Article 4 provides: “Whenever the national law of a person should apply under the Act and his or her national law refers to the law of China, the law of China shall apply.” Ma, supra note 39, app. 3 at 375 (citing the 1918 Act) (translated by author). 168. See, e.g., Tang Jixiang (唐纪翔), Zhongguo Guoji Sifa Lun (中国国际私法论) [A Treatise on Chinese Private International Law] 64–67 (1934); Depei Han (韩德培), Guoji Sifa (国际私法) [Private International Law] 125–27 (2000); Private International Law, supra note 148, at 224–25. 169. See, e.g., Depei, supra note 168, at 127. 170. Proposed Draft of the Law, supra note 103, at 12 (translated by author). 171. See Zhu, supra note 69, at 290. 172. Russell J. Weintraub, The Future of Choice of Law for Torts: What Principles Should Be Preferred?, 41 Law & Contemp. Probs. 146, 148 (1977) (commenting on the conflicts law decisions of the New York Court of Appeals). 173. See, e.g., Dicey, Morris & Collins: The Conflict of Laws, supra note 115, at 92–95. 174. See 2010 Law on Choice of Law, supra note 5, art. 9. 175. Liu Tiezheng (刘铁铮), Guoji Sifa Luncong (国际私法论丛) [Selected Articles on Private International Law] 209–12 (1991). 176. See Zhao Xichen (赵喜臣) & Xu Qingkun (许庆坤), Guanyu Fanzhi Zhidu De Fansi (关于反致制度的反思) [Some Reflections on Renvoi], 4 Zhongguo Guoji Sifa Yu Bijiao Fa Niankan (中国国际私法与比较法年刊) [Chinese Y.B. Priv. Int’l & Comp. L.] 119, 124–34 (2001). 177. Morris: The Conflict of Laws, supra note 11, at 381 (citing Jackson’s expression). 178. Ma, supra note 39, app. 3 at 375 (translated by author). 179. See General Principles of the Civil Law, supra note 8, art. 150, which provides: “The application of foreign law or international usages under the provisions of this chapter shall not be incompatible with the social and public interests of the People’s Republic of China.” (translated by author). 180. SeeDicey, Morris & Collins: The Conflict of Laws, supra note 115, at 101. 181. See, e.g., Xiao Yongping (肖永平), Xiao Yongping Lun Chongtu Fa (肖永平论冲突法) [Xiao Yongping on Conflict of Laws] 105 (2002). 182. Id. 183. Id. 184. 2010 Law on Choice of Law, supra note 5, art. 5 (translated by author). 185. 1988 Opinions, supra note 64, art. 194 (translated by author). 186. See, e.g., Xiao, supra note 181, at 112–20. 187. 2012 Judicial Interpretation I, supra note 77, art. 11 (translated by author). 188. See, e.g., Xu Qingkun (许庆坤), Guoji Sifa Zhong De Falü Guibi Zhidu: Zaisheng Haishi Xiaowang (国际私法中的法律规避制度:再生还是消亡) [The Doctrine of Evasion of Law in Private International Law: Rebirth or Being Discarded?], 5 Faxue Yanjiu (法学研究) [Chinese L.J.] 195, 205–08 (2013). 189. Guo & Xu, supra note 68, at 125. 190. SeeDu, supra note 117, at 266; Huo, supra note 72, at 1085. 191. See supra text accompanying notes 17–18. 192. See supra text accompanying note 21. 193. 2012 Judicial Interpretation I, supra note 77, art. 3. 194. 2010 Law on Choice of Law, supra note 5, art. 41. 195. 2012 Judicial Interpretation I, supra note 77, art. 3. 196. See supra text accompanying note 22. 197. Article 3(2) of the 2012 Judicial Interpretation I states that where any other statute provides the applicable law for a civil relation with foreign elements and the 2010 Law on Choice of Law is silent on the matter, the provision of the other statute shall apply. See 2012 Judicial Interpretation I, supra note 77, art. 3. 198. Zuigao Renmin Fayuan Yuyi Feizhi De 1999 Niandi Yiqian Fabu De Youguan Sifa Jieshi Mulu (Di San Pi) (最高人民法院予以废止的1999年底以前发布的有关司法解释目录(第三批)) [The List of Abolished Judicial Interpretations Issued Before the End of 1999 by the Supreme People’s Court (III)] (promulgated by the Supreme People’s Ct., July 13, 2000, effective July 25, 2000), CLI.3.30922 (Chinalawinfo). 199. See Private International Law, supra note 1, at 207 (2d ed. 2007). 200. See, e.g., Faguo Dafei Lunchuan Youxian Gongsi (CMACGM) Su Hunan Sheng Jishu Jinchukou Gufen Youxian Gongsi (法国达飞轮船有限公司诉湖南省技术进出口股份有限公司) [CMACGM, Fr. v. Tech. Imp. & Exp., Co., Hunan Prov.] (Hubei High People’s Ct. Aug. 12, 2004), CLI.C. 24167 (Chinalawinfo). 201. Zuigao Renmin Fayuan Guanyu Feizhi 1997 Nian Qi Yue Yi Ri Zhi 2011 Nian Shi Er Yue San Shi Yi Ri Qijian Fabu De Bufen Sifa Jieshi He Sifa Jieshi Xingzhi Wenjian (Di Shi Pi) De Jueding (最高人民法院关于废止1997年7月1日至2011年12月31日期间发布的部分司法解释和司法解释性质文件(第十批)的决定) [Decision of the Supreme People’s Court on the Abolishment of Some Judicial Interpretations Issued Between July 1, 1997, and December 31, 2011 (X)] (promulgated by the Sup. People’s Ct., Feb. 26, 2013, effective Apr. 8, 2013), CLI.3.198871(EN) (Lawinfochina). 202. The author found seven decisions after searching the database of cases available on Beida Fabao (北大法宝) [Peking Univ. Law Database], www.pkulaw.cn. The 2007 Rules was expressly applied in all of the decisions, even for cases whose facts occurred after April 8, 2013. See, e.g., Xunbang Keji Guoji Youxian Gongsi Su Shenzhen Shi Guoxun Keji Youxian Gongsi (讯邦科技国际有限公司诉深圳市国讯科技有限公司) [Xunbang Tech. & Int’l, Co. v. Shenzhen Guoxun Tech., Co.] (People’s Ct. of Futian District of Shenzhen Mar. 1, 2014), CLI.C. 3403211 (Chinalawinfo). 203. 2010 Law on Choice of Law, supra note 5, art. 41 (translated by author). 204. Id. art. 1 (stating that choice-of-law rules only apply to civil relations with foreign elements); Private International Law, supra note 1, at 3–4. 205. 2012 Judicial Interpretation I, supra note 77, art. 1 (translated by author). 206. SeePrivate International Law, supra note 1, at 3. 207. Cf. 1988 Opinions, supra note 64, art. 178(1). 208. See supra text accompanying note 119. 209. At the 2015 Annual Meeting of the Chinese Society of Private International Law, one chief judge argued that, where two companies incorporated in Mainland China conclude a contract and the shareholders of one of the companies are from Hong Kong, the investment from Hong Kong might be covered by “other circumstances” even though all other factors relating to the contract are situated in Mainland China. See Liu Guixiang, Chief Judge, the First Circuit Tribunal of the Sup. People’s Ct., Keynote Address at the 2015 Annual Meeting of the Chinese Society of Private International Law (Nov. 14, 2015). 210. Ma, supra note 39, app. 3 at 377 (translated by author). 211. SeePrivate International Law, supra note 1, at 207. 212. See supra text accompanying notes 84–87. Cf. Zuigao Renmin Fayuan Guanyu Shenli Shewai Minshi Huo Shangshi Hetong Jiufen Anjian Falü Shiyong Ruogan Wenti De Guiding (最高人民法院关于审理涉外民事或商事合同纠纷案件法律适用若干问题的规定) [Rules of the Supreme People’s Court on the Relevant Issues Concerning the Application of Law in Hearing Foreign-Related Contractual Dispute Cases in Civil and Commercial Matters] (promulgated by the Sup. People’s Ct., July 23, 2007, effective Aug. 8, 2007), art. 4, reprinted in Comparative Conflict of Laws: Conventions, Regulations, and Codes, supra note 8, at 312. 213. 2010 Law on Choice of Law, supra note 5, art. 41. 214. 2012 Judicial Interpretation I, supra note 77, art. 9; Du, supra note 117, at 273–74. 215. 2010 Law on Choice of Law, supra note 5, art. 12. 216. Id. art. 14. 217. Id. art. 5. 218. Id. art. 4. 219. 2012 Judicial Interpretation I, supra note 77, art. 11. 220. Zhonghua Renmin Gongheguo Hetong Fa (中华人民共和国合同法) [Contract Law] (promulgated by the Standing Comm. Nat’l People’s Cong., May 15, 1999, effective Oct. 1, 1999), art. 126, CLI.1.21651(EN) (Lawinfochina). 221. Zhonghua Renmin Gongheguo Shewai Jingji Hetong Fa (中华人民共和国涉外经济合同法) [Foreign Economic Contract Law] (promulgated by the Standing Comm. Nat’l People’s Cong., Mar. 21, 1985, effective July 1, 1985), art. 5(2), CLI.1.2333(EN) (Lawinfochina). 222. Contract Law, May 15, 1999, art. 126 (translated by author). 223. Rules of the Supreme People’s Court on the Relevant Issues Concerning the Application of Law in Hearing Foreign-Related Contractual Dispute Cases in Civil and Commercial Matters, July 23, 2007, art. 8. 224. Zhonghua Renmin Gongheguo Minshi Susong Fa (中华人民共和国民事诉讼法) [Civil Procedure Law] (promulgated by the Standing Comm. Nat’l People’s Cong., Apr. 9, 1991, effective Apr. 9, 1991), art. 266, CLI.1.5110(EN) (Lawinfochina). 225. SeeYao Meizhen (姚梅镇), Waishang Touzi Qiye Fa Jiaocheng (外商投资企业法教程) [Textbook of Foreign Investment Enterprise Law] 32, 232–33 (2d ed. 1994). 226. SeeHe Qisheng (何其生), Bijiao Fa Shiye Xia De Guoji Minshi Susong (比较法视野下的国际民事诉讼) [International Civil Litigation in Comparative Perspective] 128–30 (2015) (arguing against exclusive jurisdiction over foreign investment enterprise contracts performed in China). 227. Albert A. Ehrenzweig, The Second Conflicts Restatement: A Last Appeal for Its Withdrawal, 113 Pa. L. Rev. 1230, 1241 (1964). 228. Juenger, supra note 27, at 58 (citing David’s argument). 229. See Kurt Lipstein, Characteristic Performance—A New Concept in the Conflict of Laws in Matters of Contract for the EEC, 3 Nw. J. Int’l L. & Bus. 402, 405 (1982). 230. Zuigao Renmin Fayuan Guanyu Shiyong “Shewai Jingji Hetong Fa” Ruogan Wenti De Jieda (最高人民法院关于适用《涉外经济合同法》若干问题的解答) [Response of the Supreme People’s Court to Certain Questions Concerning the Application of the Foreign Economic Contract Law] (promulgated by the Sup. People’s Ct., Oct. 19, 1987, effective Oct. 19, 1987) (repealed July 25, 2000), art. 2(6), CLI.3.3530(EN) (Lawinfochina). 231. Id. 232. Rules of the Supreme People’s Court on the Relevant Issues Concerning the Application of Law in Hearing Foreign-Related Contractual Dispute Cases in Civil and Commercial Matters, July 23, 2007, art. 5. 233. 2010 Law on Choice of Law, supra note 5, art. 41. 234. Id. 235. I found 486 contract cases decided in 2014 in which the parties did not make a choice of law. Of those cases, the principle of the closest connection was employed in 250, the principle of characteristic performance was employed in 24, and both of them were employed in 3 decisions. Article 41 of the 2010 Law on Choice of Law was generally referred to in 202 decisions; seven decisions only vaguely mentioned the 2010 Law on Choice of Law but did not apply any particular rule. The case decisions are available at Zhongguo Caipan Wenshu Wang (中国裁判文书网) [China Judgments Online], http://wenshu.court.gov.cn (last visited Nov. 6, 2017). 236. See, e.g., Zhang Lizhen (张丽珍), Tezheng Xing Lüxing Lilun Yu Zui Miqie Lianxi Yuanze Guanxi Zhi Zai Shuli——Jianyi “Shewai Minshi Guanxi Falü Shiyong Fa” Di Si Shi Yi Tiao (特征性履行理论与最密切联系原则关系之再梳理——兼议《涉外民事关系法律适用法》第41条) [Revisiting the Relationship Between the Doctrine of Characteristic Performance and the Principle of the Closest Connection—With Comments on Article 41 of the Law on Choice of Law for Foreign-Related Civil Relationships], 15 Zhongguo Guoji Sifa Yu Bijiao Fa Niankan (中国国际私法与比较法年刊) [Chinese Y.B. Priv. Int’l & Comp. L.] 98, 120–23 (2013). 237. See, e.g., Xu Qingkun (许庆坤), Xiaofeizhe Baohu De Chongtu Fa Zhi Wei (消费者保护的冲突法之维) [The Conflicts Method to Protect Consumers], 6 Zhengzhi Yu Falü (政治与法律) [Pol. Sci. & L.] 74, 74–78 (2006); Xiao Yongping (肖永平), Guoji Sifa Yuanli (国际私法原理) [The Basics of Private International Law] 184–85 (2003). 238. 2010 Law on Choice of Law, supra note 5, art. 42 (translated by author). 239. Proposed Draft of the Law, supra note 103, at 21, art. 56. 240. See “Zhonghua Renmin Gonghe Guo Shewai Minshi Guanxi Falü Shiyong Fa” Shiyi Yu Fenxi (《中华人民共和国涉外民事关系法律适用法》释义与分析) [Law on Choice of Law for Foreign-Related Civil Relationships: Interpretations and Analysis] 230 (Huang Jin (黄进) & Jiang Rujiao (姜茹娇) eds., 2011). 241. Id. at 235. 242. 2010 Law on Choice of Law, supra note 5, art. 41. 243. Cf. Rome I Regulation, supra note 151, art. 6(1). 244. Zhonghua Renmin Gongheguo Xiaofei Zhe Quanyi Baohu Fa (中华人民共和国消费者权益保护法) [Law on Protection of Consumer Rights and Interests] (promulgated by the Standing Comm. Nat’l People’s Cong., Oct. 31, 1993, effective Jan. 1, 1994), art. 2, CLI.1.6384(EN) (Lawinfochina) (defining the consumer as a person who purchases and uses goods or receives services for daily consumption). 245. Cf. Rome I Regulation, supra note 151, art. 6(4), recital 32. 246. Id. recital 23. 247. See Zhu, supra note 69, at 294–96; Proposed Draft of the Law, supra note 103, at 123–32. 248. Proposed Draft of the Law, supra note 103, at 21. 249. Id. art. 57. 250. 2010 Law on Choice of Law, supra note 5, art. 43 (translated by author). 251. Cf. article 57 of the proposed draft of the CSPIL: Proposed Draft of the Law, supra note 103, at 21. 252. See Symeonides, supra note 32, at 60. 253. Cf. Rome I Regulation, supra note 151, art. 8. 254. SeeWang Quanxing (王全兴), Laodong Fa (劳动法) [Employment Law] 208 (3d ed. 2008). 255. SeeDicey, Morris & Collins: The Conflict of Laws, supra note 115, at 2025. 256. Cf. Rome I Regulation, supra note 151, art. 8(2) (qualifying the place of work as “the country in which or, failing that, from which the employee habitually carries out his work in performance of the contract”). 257. Cf.id. art. 8(4). 258. See Li Jing, China’s New Labor Contract Law and Protection of Workers, 32 Fordham Int’l L.J. 1083, 1121–22 (2008). 259. 2010 Law on Choice of Law, supra note 5, art. 43; Law on Choice of Law for Foreign-Related Civil Relationships: Interpretations and Analysis, supra note 240, at 237. 260. General Principles of the Civil Law, supra note 8, art. 146. 261. SeeMa, supra note 39, app. 3 at 377. 262. SeeDicey, Morris & Collins: The Conflict of Laws, supra note 115, at 2206. 263. See supra text accompanying notes 19–20. 264. 2010 Law on Choice of Law, supra note 5, art. 44 (translated by author). 265. Commission Regulation 264/2007 of the European Parliament and of the Council of 11 July 2007 on the Law Applicable to Non-contractual Obligations (Rome II), 2007 O.J. (L 199) 40, 44 [hereinafter Rome II Regulation]. 266. See supra text accompanying notes 260–61, 265. 267. SeeSymeonides, supra note 3, at 59. 268. 1988 Opinions, supra note 64, art. 187. 269. See supra text accompanying notes 262. 270. See, e.g., Xu Qingkun (许庆坤), Yiban Qinquan Chongtu Fa Zhengyi Quxiang Yu Woguo Sifa Jieshi De Zhiding (一般侵权冲突法正义取向与我国司法解释的制订) [On the Trend of Justice in Conflicts Law for Torts in General and the Formulation of China’s Judicial Interpretation], 3 Faxue Jia (法学家) [The Jurist] 128, 137 (2013); Guoyong Zou, The Evolution and the Latest Developments of Chinese Conflicts Law for Torts, 9 Frontiers L. China 582, 588 (2014). 271. Rome II Regulation, supra note 265, art. 4. 272. 2010 Law on Choice of Law, supra note 5, art. 44. 273. Id. 274. Rome II Regulation, supra note 265, art. 17. 275. SeeHay, Borchers & Symeonides, supra note 2, at 876. 276. Id. at 875, 878. 277. Symeon C. Symeonides, Problems and Dilemmas in Codifying Choice of Law for Torts: The Louisiana Experience in Comparative Perspective, 38 Am. J. Comp. L. 431, 441 (1990). 278. See, e.g., Xu, supra note 270, at 137–38. 279. See, e.g., Jin Ning (金宁), Guanyu Qinquan Xingwei Falü Xuanze Yuanze (关于侵权行为法律选择原则) [The Choice-of Law Principles for Torts], 3 Anhui Daxue Xuebao (Zhexue Shehui Kexue Ban) (安徽大学学报(哲学社会科学版)) [Anhui U. J. (Phil. & Soc. Sci. Edition)] 70, 74 (1989). 280. SeeComparative Conflict of Laws: Conventions, Regulations, and Codes, supra note 8, at 355. 281. SeeProposed Draft of the Law, supra note 103, at 131. 282. Id. at 136. 283. 2010 Law on Choice of Law, supra note 5, art. 44. 284. Id. 285. SeeSymeonides, supra note 3, at 101. 286. Rome II Regulation, supra note 265, art. 14(1). 287. SeeDu, supra note 117, at 372–73. 288. Id. at 373. 289. 2010 Law on Choice of Law, supra note 5, art. 45 (translated by author). 290. SeeDu, supra note 117, at 375. 291. Rome II Regulation, supra note 265, art. 5. 292. SeeDu, supra note 117, at 375–76. 293. Cf. Rome II Regulation, supra note 265, art. 5(2). 294. Id. art. 30(2). 295. 2010 Law on Choice of Law, supra note 5, art. 46 (translated by author). 296. Id. art. 15. 297. Cf. art. 139 of the Swiss PIL Act. Bundesgesetz über das Internationale Privatrecht [IPRG] [Federal Law on Private International Law] Dec. 18, 1987, SR 291, art. 139. 298. Id. 299. See Guo Yujun (郭玉军), Zhongguo Guoji Sifa De Lifa Fansi Jiqi Wanshan—Yi “Shewai Minshi Guanxi Falü Shiyong Fa” Wei Zhongxin (中国国际私法的立法反思及其完善——以《涉外民事关系法律适用法》为中心) [Reflections on and Perfection of the Codification of China’s Private International Law: Focusing on the Law on Choice of Law for Foreign-Related Civil Relationships], 5 Qinghua Faxue (清华法学) [Tsinghua L.J.] 155, 157 (2011). 300. Id. at 162–66; Jin Huang, New Perspectives on Private International Law in the People’s Republic of China, inPrivate International Law in Mainland China, Taiwan and Europe 3, 15 (Jürgen Basedow & Knut B. Pissler eds., 2014). 301. See Quanguo Renda Changweihui 2015 Nian Lifa Gongzuo Jihua (全国人大常委会2015年立法工作计划) [The Plan of the Standing Committee of the National People’s Congress for Legislation of the Year 2015] (promulgated by the Standing Comm. Nat’l People’s Cong., Dec. 15, 2014, amended Apr. 10, 2015), 2015 Standing Comm. Nat’l People’s Cong. Gaz. 682, 683. 302. See Xu Qingkun (许庆坤), Woguo Minfa Diyu Xiaoli Lifa Zhi Jiantao: Yi “Zhonghua Renmin Gonghe Guo Minfa Tongze” Di Ba Tiao Di Yi Kuan Wei Zhongxin (我国民法地域效力立法之检讨:以《中华人民共和国民法通则》第8条第1款为中心) [A Review of the Provision for the Territorial Force of Civil Law in China: Focusing on Article 8(1) of the General Principles of Civil Law], 5 Fashang Yanjiu (法商研究) [Stud. L. & Bus.] 157, 165 (2015). 303. See Guo, supra note 299, at 164–66. 304. See supra text accompanying notes 23–31. 305. 2012 Judicial Interpretation I, supra note 77. 306. Symeonides, supra note 32, at 21. 307. There are thirty alternative-reference rules among forty special conflicts rules (from article 11 to article 50). See 2010 Law on Choice of Law, supra note 5. 308. Xu Qingkun (许庆坤), Lun Chuantong Guoji Sifa: Jian Yu Xu Chongli Jiaoshou Shangque (论传统国际私法:兼与徐崇利教授商榷) [On Traditional Private International Law: An Argument with Professor Xu Chongli], 9 Zhongguo Guoji Sifa Yu Bijiao Fa Niankan (中国国际私法与比较法年刊) [Chinese Y.B. Priv. Int’l & Comp. L.] 3, 33–34 (2007). 309. See generally Zuigao Renmin Fayuan Guanyu Anli Zhidao Gongzuo De Guiding (最高人民法院关于案例指导工作的规定) [Notice of the Supreme People’s Court on Issuing the Provisions on Case Guidance] (promulgated by the Sup. People’s Ct., Nov. 26, 2010, effective Nov. 26, 2010), CLI.3.143870(EN) (Lawinfochina). 310. Id. arts. 1–2. 311. Id. art. 7. 312. See generally Zuigao Renmin Fayuan Guanyu Xunhui Fating Shenli Anjian Ruogan Wenti De Guiding (最高人民法院关于巡回法庭审理案件若干问题的规定) [Provisions of the Supreme People’s Court on Several Issues Concerning the Trial of Cases by the Circuit Courts] (promulgated by the Sup. People’s Ct., Jan. 28, 2015, effective Feb. 1, 2015), CLI.3.242242(EN) (Lawinfochina). © The Author(s) [2017]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com.

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