Private International Law

Li Xiang

Object
The 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.

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?

1.By applying rule of conflict.(

)
2.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:

1.The laws at the habitual residence shall
apply to the civil rights capacities of a
natural person.
2.The ownership of immovable property shall be
bound by the law of the place where it is situated.
3.The laws at the locality of an estate shall apply to
the administration of estates and related issues.
4.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
Peoples 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:1902
2
:

 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 Peoples 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

A(conflict rule)
B(conflict rule)
A(substantive law)

Transmission
A(conflict rule)

B(conflict rule)

C(substantive law)

Indirect Renvoi
A(conflict rule)
B(conflict rule)
A(substantive law)

C(conflict rule)

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 exwife.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
1. 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 peoples
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
Peoples 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.

2. Reservation of the public order( )

Article 5 If the application of foreign laws will
damage the social public interests of the Peoples
Republic of China, the laws of the Peoples 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.

3.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 Frenc
h Prince

Thanks!