Conflict of Contracts Law Theory

Author: Fu Jingkun
Publisher:
Publish Date: 1999-12-01
Features: The purpose of the "Series on Special Studies in Chinese Civil and Commercial Law" is to, based on the actual conditions of China's reform and opening-up and the development of a socialist market economy, extensively reference the successful legislative experiences and latest case law and doctrines of developed countries and regions, conduct in-depth research on the fundamental theories and major legal issues of civil and commercial law, provide a scientific legal foundation for the modernization of China's civil and commercial legislation and the scientific development of civil and commercial judicial practice, enhance the theoretical level of civil and commercial law, promote research talents in civil and commercial law, and enable China's civil and commercial law research talents to catch up with the level of developed countries and regions as soon as possible.
Contractual conflict law is an important component of conflict law. In the frequent legal conflicts occurring in the international community, a significant portion of them are contractual legal conflicts. Therefore, it is necessary to conduct a specialized discussion on contractual legal conflicts. However, from another perspective, since contracts are diverse and their inherent issues are relatively complex, rules applicable to a particular type of contract or a specific issue within a contract may not be applicable to other types of contracts or other issues within contracts. Thus, it is extremely difficult to provide a comprehensive discussion of them. For this reason, in the conflict law works of various countries, scholars often only provide general discussions on contractual conflict law. Maurice pointed out that if a complete discussion of contractual conflict law were to be conducted, it would require one hundred pages. However, with the development of modern international economy, legal conflicts related to international contracts have become increasingly prominent, and it is incorrect to avoid studying them. Therefore, the author specifically wrote this book to provide a more systematic discussion of contractual legal conflicts.
The book is divided into six chapters: "Introduction," "The Principle of Autonomy of Contract and the Governing Law of Contract," "Legal Applicability Concerning Certain Special Issues," "Harmonized Substantive Law of International Contracts," "Harmonized Conflict Law of International Contracts," and "Interregional Legal Conflicts Concerning Contracts." Through these chapters, the author attempts to argue that the theoretical system of contractual conflict law is composed of three parts: the basic principles and norms of conflict law, harmonized substantive law of international contracts, harmonized conflict law of international contracts, and interregional contractual conflict law.
In the first part, the author points out that contractual conflict law is based on the principle of autonomy of contract and uses the theory of governing law as its basic conflict norm system. According to this principle, when determining the governing law of a contract, the autonomy of the parties is the core principle, and thus, the explicit, implicit, or even inferred intentions of the parties should be fundamentally respected. Of course, with the international community imposing certain restrictions on excessive contractual freedom, the parties' freedom to choose law and the application of the governing law have both been somewhat limited, with public policy and directly applicable laws becoming issues to consider when determining the governing law of a contract or whether the governing law should be applied. In addition, some traditional conflict norms also play a role in certain special issues.
In the second part, the author points out that due to the inherent unity of international contracts and the needs of modern international economic and trade development, some international conventions, customs, and model laws have emerged in certain contractual fields in recent years, leading to a certain degree of uniformity in the terms of international contracts. Through this unification of substantive content, contractual legal conflicts will inevitably be somewhat mitigated. Furthermore, given that the rules for the legal applicability of contracts prescribed in the private international law of various countries often lead to the phenomenon of "forum shopping," the international community has long been committed to developing unified conflict law rules, and the number of unified international legislative measures concerning contractual conflict law has gradually increased, providing unified solutions for contractual legal conflicts in certain areas.
Finally, in the third part, the author points out that in addition to international contractual legal conflicts, there are also interregional contractual legal conflicts within a single country. The resolution of these conflicts primarily relies on norms similar to those used for international contractual conflicts, but they also have their own characteristics.