Chinese Journal of International Law Advance Access originally published online on June 19, 2009
Chinese Journal of International Law 2009 8(2):423-439; doi:10.1093/chinesejil/jmp018
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© The Author 2009. Published by Oxford University Press. All rights reserved
BRIEF COMMENTS, ESSAYS AND NOTES |
The Closest Connection Doctrine in the Conflict of Laws in China
Correspondence: ** Luojia Professor of Wuhan University and Dean of Law School of Wuhan University, China; Managing Vice-President of the Chinese Society of Private International Law (email: ypxiao{at}vip.sina.com). This paper was completed on 18 April 2009.
The closest connection doctrine plays an important role in the conflict of laws in China. It has been applied not only in the field of contracts but also to several particular issues in areas other than contract. The Supreme People's Court in China adopts the notion of characteristic performance and provides some presumptions to determine the country of closest connection. If the presumptive rules cannot be applied, the Chinese courts tend to take the contacts-counting approach to identifying the country of closest connection, which often leads to the application of Chinese law. The authors put forward three suggestions for China's future legislation: (a) to adopt the closest connection doctrine as a general principle; (b) to adopt the "integrated contacts-evaluation" approach to determine the country of closest connection; (c) to regulate the presumption of characteristic performance in legislation.
* Associate Professor, Law School of Wuhan University.
*** PhD, Wuhan University; LLM, University of Heidelberg, Germany. We would like to thank Long Weidi, PhD student of Wuhan University, for his invaluable support and editorial work.