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China'S Specific Procedures For The Application Of Laws To Disputes Involving Civil And Commercial Contracts Involving Foreign Elements

2008/11/13 11:24:00 41888

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First of all, we must find out whether there is a mandatory rule that must be applied in our law, that is, whether contract disputes must apply to our laws.

Secondly, according to the principle of autonomy of the parties, whether the parties choose the applicable law.

The parties to choose the applicable law can include Chinese law, foreign law, international treaty and international practice.

As long as the choice does not violate our public interests and the mandatory provisions of our laws, we should directly apply the law chosen by the parties.

Third, in our country, the law does not stipulate the mandatory rules that must be applied. When the parties have not chosen the applicable law, according to the principle of priority application of international treaties, we should ascertain whether the dispute belongs to the scope of application of an international treaty.

If the parties to their respective countries are parties or participating parties to the international treaty, and the treaty stipulates that the parties must apply, the international treaty shall apply directly.

Fourth, if our country's law does not stipulate the mandatory rules that must be applied, the parties do not choose the applicable law and the dispute does not belong to the scope of the application of the international treaty.

Fifth, if there is no clear conflict rules in the application of the contract law in China, we should apply the laws in the most closely related countries or regions according to the principle of the most significant relationship.

Sixth, if the foreign law should be applied in accordance with the guidelines for conflict rules, specific laws and regulations for dispute resolution of the foreign law should be identified according to the way of finding out in China's laws.

Seventh, if the Chinese law should be applied in accordance with the guidelines for conflict rules, we should directly apply the specific legal provisions on disputes in China's laws.

Eighth, if the Chinese law is found to conflict with the international treaties that China has participated or concluded in the application of the Chinese law, relevant international treaties should be applied.

Ninth, if there is no provision in the Chinese law for disputes over cases, nor is there any provision in international treaties, the court may decide to refer to the applicable international practices.