private international law
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Private Internationa l Law Li Xiang
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private international law
Transcript of private international law
1The object of private international law is the civil and
commercial legal relation containing foreign element.For example:
1.the subject of the legal relation contains foreign element--at least one party is foreign natural person,legal person,stateless person or international organization--a Chinese man married an American woman
2.the object of the legal relation contains foreign element--subject matter()--legacy in foreign countries
3.the content of the legal relation contains foreign element--the contract is concluded in foreign countries.
Object
Conflict Law
In common law system,private international law is also called conflict law().
Why are there conflicts?
Because legal regulations in various laws are different.
The conflicts in private international law are civil and commercial legal conflicts.
How to solve the problem?
By applying rule of conflict.()
By applying the uniform substantive law.
What is "rule of conflict"?
It's neither substantive law nor procedural law.It just regulates which law should be applied under a certain circumstance rather than regulates the rights and responsibilities of the parties.So we call it "rules of application of law"()
It regulates the legal relationship indirectly,with the help of the invoked substantive regulations.
Different from substantive regulations,a rule of conflict is composed of "Object of connection/ Category"(),“Attribution”()and conjunctive word ()
The applicable law under the guidance of the rule of conflict is called lex causae()
Category:The legal relationship that need to be regulated by rules of conflict or the legal problem that need to be solved.
Attribution:the substantive law which is applied to solve the legal problem.
Point of contact()is a part of attribution.It can either be a constant point of contact() which cannot be changed or a variable point of contact ()which can be changed.
Analyze the following rule of conflict:
The laws at the habitual residence shall apply to the civil rights capacities of a natural person.
The ownership of immovable property shall be bound by the law of the place where it is situated.
The laws at the locality of an estate shall apply to the administration of estates and related issues.
The laws at the locality of the court shall apply to a divorce by litigation.
Category
unilateral conflict rules() refers to the direct provision that certain legal povisions(domestic law in most cases) should be applied to a foreign civil relationship.For example:If foreign laws can not be ascertained or there are no provisions in the laws of this country, the laws of the People’s Republic of China shall apply.
bilateral conflict rules()refers to the provisions that provide only one construvctive law.For example:The ownership of immovable property shall be bound by the law of the place where it is situated.
Overlap applicable conflict rules()refers to the provisions provide at least two applicable laws and the laws should be applied at the same time.For example:19022:
choice applicable conflict rules()with or without condition
Article 21 The laws at the mutual habitual residence of the parties shall apply to the marriage qualifications; if there is no mutual habitual residence, the laws of the mutual state of nationality shall apply; if there is no mutual nationality and the marriage is established at the habitual residence or in the state of nationality of one party, the laws at the locality where the marriage is established shall apply.
The laws at the place of tort shall apply to liabilities for tort(the place where the infringing act takes place and the place where the result of violations of the infringement occurred )
How to deal with a foreign civil case?
Step one:identification()--what'sthe nature of the case,tort?contract?Marriage?...
Article 8 Lex fori shall apply to the determination on the nature of foreign-related civil relations.
Step two: The Law of the Application of Law for Foreign-related Civil Relations of the People’s Republic of China
Article 9 Foreign laws applicable to foreign-related civil relations do not include the Law of the Application of Law of this foreign country.
Direct Renvoi/Remission
Case
David(male,A's citizen)and Marry(female,B's citizen)got married in B and moved to C after the marriage.David had a son Tom with his ex-wife.Some years later David died in C.Tom sued to C's court for the succession of David's legacy in C and the nullification of the marriage between David and Marry.C's conflict rules regulate that B's law should be applied in the case while according to B's law,A's substantive law should be used.If C's court applies A's law at last,how to define the court's decision?
Transmission C--B--A
Difficulties
Who is responsible to ascertain the provisions of the foreign law?()
Article 10 Foreign laws applicable to foreign-related civil relations shall be ascertained by the people’s court, arbitral authority or administrative organ. If any party chooses the applicable foreign laws, he shall provide the laws of this country.
If foreign laws can not be ascertained or there are no provisions in the laws of this country, the laws of the People’s Republic of China shall apply.
Article 16 The laws at the locality of agency act shall apply to agency, but the laws at the locality of agency relation shall apply to the civil relations between the principal and the agent.The parties concerned may choose the laws applicable to entrustment of agency by agreement.
Article 17 The parties concerned may choose the laws applicable to trust by agreement. If the parties do not choose, the laws at the locality of the trust or of the fiduciary relation shall apply.
Article 18 The parties concerned may choose the laws applicable to arbitral agreement by agreement. If the parties do not choose, the laws at the locality of the arbitral authority or of the arbitration shall apply.
Reservation of the public order()
Article 5 If the application of foreign laws will damage the social public interests of the People’s Republic of China, the laws of the People’s Republic of China shall apply.
Article 150 (of GPoCL) The application of foreign laws or international practice in accordance with the provisions of this chapter shall not violate the public interest of the People's Republic of China.
Article 266 If a party applies for execution of a legally effective judgment or order made by a people's court and the party subject to execution or its property is not within the territory of the People's Republic of China, it may directly apply for recognition and enforcement to the foreign court which has jurisdiction over the case, or the people's court may, in accordance with the relevant provisions of the international treaties concluded or acceded to by China, or on the principle of reciprocity, request recognition and enforcement by a foreign court.
If a party applies for execution of a legally effective arbitral award made by an arbitration agency on foreign-related disputes of the People's Republic of China and the party subject to execution or its property is not within the territory of the People's Republic of China, it may directly apply for recognition and enforcement to the foreign court which has jurisdiction over the case.
evasion of law()--change the point of contact deliberately in order to avoid the application of the law which should be applied and caused some legal effect.
A famous case:The divorce of a French Prince
Thanks!
commercial legal relation containing foreign element.For example:
1.the subject of the legal relation contains foreign element--at least one party is foreign natural person,legal person,stateless person or international organization--a Chinese man married an American woman
2.the object of the legal relation contains foreign element--subject matter()--legacy in foreign countries
3.the content of the legal relation contains foreign element--the contract is concluded in foreign countries.
Object
Conflict Law
In common law system,private international law is also called conflict law().
Why are there conflicts?
Because legal regulations in various laws are different.
The conflicts in private international law are civil and commercial legal conflicts.
How to solve the problem?
By applying rule of conflict.()
By applying the uniform substantive law.
What is "rule of conflict"?
It's neither substantive law nor procedural law.It just regulates which law should be applied under a certain circumstance rather than regulates the rights and responsibilities of the parties.So we call it "rules of application of law"()
It regulates the legal relationship indirectly,with the help of the invoked substantive regulations.
Different from substantive regulations,a rule of conflict is composed of "Object of connection/ Category"(),“Attribution”()and conjunctive word ()
The applicable law under the guidance of the rule of conflict is called lex causae()
Category:The legal relationship that need to be regulated by rules of conflict or the legal problem that need to be solved.
Attribution:the substantive law which is applied to solve the legal problem.
Point of contact()is a part of attribution.It can either be a constant point of contact() which cannot be changed or a variable point of contact ()which can be changed.
Analyze the following rule of conflict:
The laws at the habitual residence shall apply to the civil rights capacities of a natural person.
The ownership of immovable property shall be bound by the law of the place where it is situated.
The laws at the locality of an estate shall apply to the administration of estates and related issues.
The laws at the locality of the court shall apply to a divorce by litigation.
Category
unilateral conflict rules() refers to the direct provision that certain legal povisions(domestic law in most cases) should be applied to a foreign civil relationship.For example:If foreign laws can not be ascertained or there are no provisions in the laws of this country, the laws of the People’s Republic of China shall apply.
bilateral conflict rules()refers to the provisions that provide only one construvctive law.For example:The ownership of immovable property shall be bound by the law of the place where it is situated.
Overlap applicable conflict rules()refers to the provisions provide at least two applicable laws and the laws should be applied at the same time.For example:19022:
choice applicable conflict rules()with or without condition
Article 21 The laws at the mutual habitual residence of the parties shall apply to the marriage qualifications; if there is no mutual habitual residence, the laws of the mutual state of nationality shall apply; if there is no mutual nationality and the marriage is established at the habitual residence or in the state of nationality of one party, the laws at the locality where the marriage is established shall apply.
The laws at the place of tort shall apply to liabilities for tort(the place where the infringing act takes place and the place where the result of violations of the infringement occurred )
How to deal with a foreign civil case?
Step one:identification()--what'sthe nature of the case,tort?contract?Marriage?...
Article 8 Lex fori shall apply to the determination on the nature of foreign-related civil relations.
Step two: The Law of the Application of Law for Foreign-related Civil Relations of the People’s Republic of China
Article 9 Foreign laws applicable to foreign-related civil relations do not include the Law of the Application of Law of this foreign country.
Direct Renvoi/Remission
Case
David(male,A's citizen)and Marry(female,B's citizen)got married in B and moved to C after the marriage.David had a son Tom with his ex-wife.Some years later David died in C.Tom sued to C's court for the succession of David's legacy in C and the nullification of the marriage between David and Marry.C's conflict rules regulate that B's law should be applied in the case while according to B's law,A's substantive law should be used.If C's court applies A's law at last,how to define the court's decision?
Transmission C--B--A
Difficulties
Who is responsible to ascertain the provisions of the foreign law?()
Article 10 Foreign laws applicable to foreign-related civil relations shall be ascertained by the people’s court, arbitral authority or administrative organ. If any party chooses the applicable foreign laws, he shall provide the laws of this country.
If foreign laws can not be ascertained or there are no provisions in the laws of this country, the laws of the People’s Republic of China shall apply.
Article 16 The laws at the locality of agency act shall apply to agency, but the laws at the locality of agency relation shall apply to the civil relations between the principal and the agent.The parties concerned may choose the laws applicable to entrustment of agency by agreement.
Article 17 The parties concerned may choose the laws applicable to trust by agreement. If the parties do not choose, the laws at the locality of the trust or of the fiduciary relation shall apply.
Article 18 The parties concerned may choose the laws applicable to arbitral agreement by agreement. If the parties do not choose, the laws at the locality of the arbitral authority or of the arbitration shall apply.
Reservation of the public order()
Article 5 If the application of foreign laws will damage the social public interests of the People’s Republic of China, the laws of the People’s Republic of China shall apply.
Article 150 (of GPoCL) The application of foreign laws or international practice in accordance with the provisions of this chapter shall not violate the public interest of the People's Republic of China.
Article 266 If a party applies for execution of a legally effective judgment or order made by a people's court and the party subject to execution or its property is not within the territory of the People's Republic of China, it may directly apply for recognition and enforcement to the foreign court which has jurisdiction over the case, or the people's court may, in accordance with the relevant provisions of the international treaties concluded or acceded to by China, or on the principle of reciprocity, request recognition and enforcement by a foreign court.
If a party applies for execution of a legally effective arbitral award made by an arbitration agency on foreign-related disputes of the People's Republic of China and the party subject to execution or its property is not within the territory of the People's Republic of China, it may directly apply for recognition and enforcement to the foreign court which has jurisdiction over the case.
evasion of law()--change the point of contact deliberately in order to avoid the application of the law which should be applied and caused some legal effect.
A famous case:The divorce of a French Prince
Thanks!
