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 However, the 2010 Law only repealed three conflicts law articles, and conflicts rules remain scattered throughout different statutes.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.