Chinese Private International Law Research Articles

Studies of Private International Law, Vol. 2: Indonesian Private International Law, Vol. 3: Chinese Private International Law, Vol. 5: Japanese Private International Law, Vol. 6: Indian Private International Law, by Afifah Kusumadara, Vol. 2, Hart Publishing, 2021, 288 pages ; by Xiaohong Liu and Zhengyi Zhang (eds.), Vol. 3, Hart Publishing, 2021, 352 pages ; by Kazuaki Nishioka and Yuko

Studies of Private International Law, Vol. 2: Indonesian Private International Law, Vol. 3: Chinese Private International Law, Vol. 5: Japanese Private International Law, Vol. 6: Indian Private International Law, by Afifah Kusumadara, Vol. 2, Hart Publishing, 2021, 288 pages ; by Xiaohong Liu and Zhengyi Zhang (eds.), Vol. 3, Hart Publishing, 2021, 352 pages ; by Kazuaki Nishioka and Yuko

Consumer Jurisdiction and Choice of Law Rules in European and Chinese Private International Law

This article compares consumer jurisdiction and choice of law issues in China and the EU. It aims to answer the following questions. What is the notion of consumer? Are farmers, package travel tourists and timeshare tourists consumers? Are dual-purpose contracts consumer contracts? Is a consumer jurisdiction rule needed in China and if yes, under what ground and with what conditions? Is choice of court agreement in consumer contracts valid? How to limit the exercise of party autonomy and what role mandatory provisions may play? Shall consumer contract and tort claims be subject to the same applicable law? Based on a comparative analysis with European law, this article concludes that to improve cross-border consumer protection, China should reform its law to include package travel contracts and timeshare contracts into consumer contracts and determine the nature of dual-purpose contracts pursuant to their primary purpose. Moreover, the current limitation on party autonomy should be lifted by providing freedom to both parties and relying on mandatory provisions as a safety valve. The consumer choice of law rule and its interaction with the general contract choice of law and tort choice of law rule needs to be reexamined.

Developing Chinese Private International Law for Transnational Civil and Commercial Litigation: The 2024 New Chinese Civil Procedure Law

On 1 September 2023, the Standing Committee of the National People’s Congress amended the Chinese Civil Procedure Law which will come into effect on 1 January 2024 (‘the 2024 CPL’). The 2024 CPL brings significant changes to the entire procedure of transnational civil and commercial litigation in China covering jurisdiction, service of process, the taking of evidence abroad, and the recognition and enforcement of foreign judgments. It is critical for foreign states, courts, and parties which conduct business in China to understand this new legal development and to prepare for the changes. Adopting comparative-law and empirical research methods, this commentary aims to explain the new provisions for transnational civil litigation in the 2024 CPL and how they may be implemented in practice.

Is a Mummy a Person or a Property: The Classification and Choice of Law of Cultural Objects in Private International Law

Abstract In the Buddha Mummy Statue case, the Chinese village committees sued the Dutch defendants for the return of a stolen golden statue that contains a mummified Buddha. The parties had different opinions on the legal nature of the mummy contained in the statue. The Chinese court classified the statue as a cultural property and applied the choice of law over movable properties provided in Article 37 of the Chinese Private International Law Act (lex rei sitae). Based on a comparative study, this article argues that a mummy does not fall within the traditional dichotomy between a person and a property. Instead, a mummy should be classified as a transitional existence between a person and a property. If the classification of a mummy has to be confined to the traditional dichotomy, a mummy can be regarded as a quasi-person or a special kind of property. Following this new classification, a new choice-of-law rule should be established. In this regard, the Belgian Private International Law Act, which adopts the lex originis rule, supplemented by the lex rei sitae rule, is a forerunner. This article advocates that the adoption of the lex originis rule may help to stop the vicious circle of illegal possession of stolen cultural objects and facilitate the return of stolen cultural objects, especially those containing human remains, to their country of origin.

Chronology of Practice: Chinese Practice in Private International Law in 2020

Abstract This survey contains materials reflecting the practice of Chinese private international law in 2020. First, regarding changes in the statutory framework of private international law in China, three legislative acts, one administrative regulation on the Unreliable Entity List and ten judicial interpretations of the Supreme People’s Court were adopted or amended in 2020 on a wide range of matters, including conflict of laws, punitive damages, international civil procedure, etc. Second, 11 typical cases involving Chinse courts’ jurisdiction are selected to highlight the development in Chinese private international law, involving standard essential patents, abuse of market dominance, declaration of non-infringement of patent, asymmetric choice of court agreement and other matters. Third, nine cases on choice of law questions relating, in particular, to habitual residence, rights in rem, matrimonial property regimes and ascertainment of foreign law, are examined. Fourth, five cases involving anti-suit injunction or anti-enforcement injunction are reported and one introduced in detail. Fifth, the first occasion for on international judicial assistance of extracting DNA, as well as three representative cases on the recognition and enforcement of foreign judgments, are discussed. The Statistics of international judicial assistance cases in China is first released in this survey. Finally, this survey also covers five recent decisions illustrating Chinese courts’ pro-arbitration attitude towards the uncertainty brought about by contractual clauses referring to both litigation and arbitration.

Chronology of Practice: Chinese Practice in Private International Law in 2019

Abstract This survey contains materials reflecting the practice of Chinese private international law in 2019. First, this paper describes the judiciary’s caseload: Chinese courts decided some 17,000 foreign-related civil and commercial cases, 16,000 maritime cases and 9,648 requests for judicial assistance in 2019. Regarding changes in the statutory framework of private international law, four legislative acts, one set of Regulations and six Supreme People’s Court (SPC) Judicial Interpretations were adopted or amended in 2019 on investment contracts, action preservation in intellectual property, punitive damages, etc. Second, eight typical cases on jurisdictional issues are selected, including jurisdiction clauses, parallel proceedings, and res judicata. Third, seven new representative cases on choice of law relating, in particular, to international transport, force majeure, gambling debts and public order, are examined. Fourth, five cases on the recognition and enforcement of foreign judgments and one SPC Opinion in favour of presumed reciprocity are briefly examined. Finally, this paper also covers seven key cases which reflect the latest development in Chinese private international law on other procedural issues, such as service of process abroad and authentication, and three cases on international arbitration (including the first decision rendered by the China International Commercial Court).

Chronology of Practice: Chinese Private International Law in 2018

This paper contains materials reflecting the practice of Chinese private international law in 2018. First, the statistics of the foreign-related civil or commercial cases decided by Chinese courts is extracted from the Report on the Work of the Supreme People’s Court (SPC) in 2018. Second, the SPC judicial interpretation concerning the enforcement of arbitral awards is translated, and the interpretation reflects a pro-arbitration tendency in Chinese courts. Third, six typical cases, which involve the validity of a choice of court clause under the transfer of contract, the conflict of laws issues regarding personal injury on the high seas, visitation rights and uncontested divorces, as well as the recognition of foreign judgments, are selected. Fourth, the paper introduces a case embodying the “one-stop” international commercial dispute resolution mechanism in Chinese courts. Finally, the paper also covers six representative decisions regarding the parties’ status, the presumption of the parties’ intention as to choice of law, and the validity of arbitration agreements.

Recognition of Foreign Judgments in China: The Liu Case and the “Belt and Road” Initiative

In June, 2017, the Wuhan Intermediate People’s Court became the first Chinese court to recognize a U.S. judgment in the case of Liu Li v. Tao Li & Tong Wu. The Liu case is a significant development in Chinese private international law, but represents more than a single decision in a single case. It is one piece of a developing puzzle in which the law on the recognition and enforcement of foreign judgments in China is a part of a larger set of developments. These developments are inextricably tied to the “One Belt and One Road,” or “Belt and Road” Initiative first announced by Chinese President Xi Jinping on a visit to Kazakhstan in 2013. This article traces the development of the Liu case, from the first judgment in California to the decision to recognize and enforce that judgment in Wuhan, China. It then provides the context within which the decision on recognition and enforcement was made, and the way the decision fits within President Xi’s “Belt and Road” Initiative and the pronouncements of the Chinese People’s Supreme Court which have encouraged the recognition and enforcement of foreign judgments as part of that Initiative.

Chinese private international law and online data protection

This paper explores how Chinese private international law responds to online data protection from two aspects: jurisdiction and applicable law. Compared with foreign laws, Chinese private international law related to online data protection has two distinct features. Chinese law for personal jurisdiction is still highly territorial-based. The “target” factor and the interactive level of a website have no play in Chinese jurisprudence. Regarding applicable law, Chinese legislators focus more on the domestic compliance with data regulations rather than their extra-territorial application. Moreover, like foreign countries, China also resorts to Internet intermediaries to enhance enforcement of domestic law. These features should be understood in the Chinese contexts of high-level data localization and Internet censorship.

Chronology of Practice: Chinese Practice in Private International Law in 2017*

This survey contains materials reflecting the practice of Chinese private international law in 2017. First, the statistics of the foreign-related civil or commercial cases accepted and decided by Chinese courts is extracted from the reports of the Supreme People’s Court (SPC), released in 2018, most notably the Report on the Work of the SPC in 2017. Second, two judicial interpretations of the SPC that took effect in 2017 are translated, i.e., the Provisions of the SPC on Issues Concerning Report and Approval of Cases Requiring Judicial Review of Arbitration and the Provisions of the SPC on Several Issues Concerning Trial of Cases Requiring Judicial Review of Arbitration. These two instruments contain provisions reflecting a pro-arbitration tendency in Chinese courts. Another document, the Nanning Statement of the Second China-ASEAN Justice Forum, is also introduced. It contains a commitment to judicial assistance cooperation, especially improvement of mutual recognition and enforcement of judgments. Third, since China signed The Hague Convention on Choice of Court Agreements in 2017, but has not yet ratified it, one case selected in this paper cites the Convention as a reference in its assessment of the exclusivity of the applicable choice of court clause. Fourth, three representative cases with regard to independent guarantee, letter of credit and financial loan contract are examined. These cases from the SPC shed light on the independence principle of the guarantee and the credit, as well as the strict compliance principle. Fifth, three typical cases decided by various Chinese courts during 2017 are introduced. These cases involve issues relating to the law applicable to construction contracts and land contracts, as well as property relationships between spouses. As for the application of international conventions, two separate cases involving the application of the CISG and the Montreal Convention are reviewed. Finally, the paper examines three cases with different or inconsistent practices regarding reciprocity and other issues, given recent increases in the recognition and enforcement of monetary judgments by Chinese courts. In this regard, a unified practice is required in Chinese courts.

Chinese Private International Law and Online Data Protection

This paper explores how Chinese private international law responds to online data protection from two aspects: jurisdiction and applicable law. Compared with foreign laws, Chinese private international law related to online data protection has two distinct features. Chinese law for personal jurisdiction is still highly territorial-based. The “target” factor and the interactive level of a website have no play in Chinese jurisprudence. Regarding applicable law, Chinese legislators focus more on the domestic compliance with data regulations rather than their extra-territorial application. Moreover, like foreign countries, China also resorts to Internet intermediaries to enhance enforcement of domestic law. These features should be understood in the Chinese contexts of high-level data localization and Internet censorship.

Determination of Habitual Residence in Chinese Private International Law: Lessons from Extraterritorial Experience

In the 2010 Chinese PIL, habitual residence was recognised as a primary connecting factor of lex personalis, and the law of habitual residence has also become an important principle of choice of law in Chinese PIL. However, the concept of habitual residence is not defined in the 2010 Chinese PIL. In order to facilitate the determination of habitual residence, Article 15 of the 2012 Judicial Interpretation on 2010 Chinese PIL clarifies the concept of habitual residence. Nevertheless, the application of Article 15 in that judicial interpretation not only may lead to rigid and mechanical outcomes, but also result in inability to meet the need of protecting the interests of the child. Therefore, it is necessary to endow judges with discretion in the determination of a person’s habitual residence. It can be seen from the extraterritorial practice that the discretion of judges is not unrestricted. The judges should take a natural person’s centre of life and interests at the starting position, and consider the interests of equality, interests of communication and interests of efficiency of PIL as a whole in the exercise of this discretion. In particular, a natural person’s centre of gravity of pre-existing interests should be regarded as a main thread by the judges during the process of ascertaining habitual residence. In conclusion, the doctrine of a natural person’s centre of gravity of pre-existing interests provides important practical value for the ascertainment of the habitual residence in Chinese PIL.

The Statutory Reform of Chinese Private International Law in Property Rights: A Silent Revolution

This article reviews the statutory reform of Chinese private international law from the perspective of property rights which concludes that notwithstanding the significant improvement, the new Private International Law Act of China are fraught with various defects. In the field of property, Article 37 and Article 38 are particularly problematic as the introduction of unlimited party autonomy into the choice-of-law rules for movables and res in transitu is theoretically indefensible and practically troublesome. Moreover, there are a number of defects or problems with Article 39 and Article 40 of the Act respectively. What’s more, the Act neglects some other important types of property that call for special treatment, such as cultural property, and assignment of debt. In the end, the article puts forward the corresponding suggestions for improvement.

Non-State Law in Chinese Choice of Law Rules

Non-state law are norms or rules that are not domestic law of a particular sovereign country. It is a collective concept, which covers, in general, codified customs and rules, uncodified customs and rules and international conventions that stand alone without being implemented or transferred into any domestic legal systems. The issue of whether non-state law can be applied as the applicable law to decide the substantive rights and obligations in a dispute has generated debates. It has been argued by some commentators that non-state law should be treated, in private international law, as equivalent to state law, which should be able to be applied as the governing law of a contract, because lex mercatoria or other non-state norms has been frequently used in international arbitration as the governing law of an international commercial contract, because non-state law is more appropriate than national law for the purpose of international trade, and because non-state law is neutral. Opponents, however, argue that non-state law is ambiguous and uncertain and, more importantly, it may not be construed as “law” in the concept of choice of law. The status of non-state law in Chinese choice of laws has never been systematically examined in academic writings. In practice, no sufficient attention has been paid to it, either. The judgments vary largely from courts to courts, without sufficient reasoning. This issue has been ignored in the recent legislation of the new applicable law act. The final Act on the Applicable Law to Foreign-Related Civil Relations remains silence on this issue. It is unfortunate that the current uncertainty will remain for a considerable period of time until it is clarified by the relevant authorities. This article aims to explore the application of non-state law in Chinese private international law. Section 2 conducts a literal study of the existing Chinese legislation and judicial interpretation. Section 3 considers the interpretation of paragraph 2 of Article 142 of the General Principles of Civil Law (GPCL) on the status of international treaties in Chinese law and the courts’ practice in applying this provision. Section 4 examines the interpretation and application of paragraph 3 of Article 142 of GPCL, which concerns the status of customs. It is concluded in Section 5 China should adopt the general international litigation practice and only permits the parties to incorporate non-state law into contracts and enforcing them as contract terms.

Analysis of the intellectual property rights terms in Chinese private international law: on the perspective of the latest regulations

The Law of the Application of Law for Foreign-related Civil Relations of the People’s Republic of China is the first Chinese separate statute on private international law. It came into force at April 2011 and modernised the conflicting rules concerning foreign-related relations in Chinese legislation system. Besides the general provisions, three terms related to the intellectual property were provided in the new law, including the applicable law of ownership and content, the assignment and the liabilities for the infringement of intellectual property rights. Although the new law contains some flaws, it is nevertheless a milestone in the development of Chinese law.

The EU Conflict of Laws Communitarization and the Modernization of Chinese Private International Law

The EU Conflict of Laws Communitarization and the Modernization of Chinese Private International Law, 10.1628/003372512798955059, Jahrgang 76 (2012) / Heft 1, 0033-7250 (1868-7059), The Rabel Journal of Comparative and International Private Law

Act of the People’s Republic of China on Application of Law in Civil Relations with Foreign Contacts

On 28. 10. 2010, China promulgated the Act of the People’s Republic of China on Application of Law in Civil Relations with Foreign Contacts (ALA), which came into force in China’s Mainland on 1.4.2011. As the first choice-of-law act in the Mainland of People’s Republic of China, the ALA is a milestone in the development of Chinese private international law. The ALA systematises previous choice-of-law rules to a certain extent, but does not repeal all of them. The Act is remarkable for its brevity and lack of concrete solutions. The legislators have opted for generality, while leaving specific issues to the courts and in particular, to the Chinese Supreme People’s Court which is likely to issue interpretive instruments on the Act. Thus, the legislature has merely set the stage for the judiciary by providing a preliminary framework for future Chinese PIL. Within this framework, the ALA will have to interact with previous as well as future conflict rules. The present English translation presents the rules of the ALA.

Thoughts on the theories and practice of chinese private international law

“The parties can only choose facultative legal norms,” “the parties of all foreign-related civil and commercial cases may agree to choose Chinese law as the applicable law governing their legal relationship,” and “the applicable law to the contract chosen by the parties shall not avoid the mandatory provisions of Chinese law” —such viewpoints that have substantial influence among the theorists and in the judicial practices of Chinese private international law are actually based on misunderstandings of Chinese private international law. It is a task of the private international law community of China to eliminate such misunderstandings, hence facilitating the healthy development of Chinese private international law.

Issues in the Application of Depecage in Chinese Private International Law

This essay examines the doctrine of depecage as a tool that may be used to solve complex private international law problems arising in China that cannot be satisfactorily resolved with the law of just one jurisdiction. A comparative analysis is made with US law to help create a framework for the applicability of depecage in China. Lastly, the essay examines the factors that may hinder the application of depecage in China.

Contract in Chinese Private International Law

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