What Laws Can Be Applied To Foreign Contractual Obligations?

The so-called contract refers to the agreement between the parties to establish, alter or terminate the relationship between civil rights and obligations.

The so-called debt of a contract is a relationship arising from the conclusion of a contract.

In all bond debt relationships, the debt of the contract is the most important component.

The debt of Foreign-related Contracts refers to the relationship between bonds and debts arising from contracts, which are foreign related factors. In this bond and debt relationship, the principal is usually a person with different nationalities or his residence and business place in different countries, or the content of the contract refers to the object in foreign matter, intellectual achievement or the need to complete in foreign countries; or the fact that the contract is established, changed or terminated occurs in foreign countries.

The application of law in foreign contractual obligations refers to how to determine the applicable law of foreign contracts.

The world has different theories and practices on this issue.

Summed up, mainly reflected in three theories, namely, autonomy of will, objective sign and the most closely related theory.

(1) autonomy of will

The so-called autonomy of will means that the contract is determined by the domestic legislation of the parties jointly chosen by the two parties as the applicable law of the contract to determine the rights and obligations of the parties. In other words, the law chosen by both parties in the contract is the appropriate law for the contract.

First, the application of foreign party contract applies to the law of the parties' agreement. Only when the parties have no explicit choice and tacit agreement, then the most closely and truest connection with the contract is applicable.

This principle was first put forward by French scholar Du Molan in sixteenth Century.

By nineteenth Century, free capitalism had been fully developed, and the principle of "autonomy of private law" and "freedom of contract" had been established. The autonomy of the parties in the application of contract law has gradually been accepted by countries all over the world in theory and practice.

It can be said that after nineteenth Century, the principle of party autonomy has gradually gained the dominant position in the field of contract law application.

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From the perspective of legislation and practice, domestic legislation and relevant international treaties adopted different principles and regulations.

1. Restrictions on the choice of legal means by the parties to a contract.

The choice of legal means refers to the intention form of the parties to express their choice of the applicable law of contract, which usually includes two kinds of express and implied.

The restriction on the choice of legal means by the parties is mainly manifested in whether or how to recognize the implied choice of the legal mode.

Some countries, such as the United States, France, Switzerland and the 1995 Hague Convention on the sale of movable property, have limited recognition of the implied choice of law.

2014 enterprise legal adviser "practice": special provisions concerning foreign arbitration

Summary of Foreign Arbitration:

1. differences between foreign civil arbitration and foreign related civil action

The nature and jurisdiction are different; the scope of jurisdiction is different; the procedure of hearing is different.

2. connection between foreign related arbitration and foreign related civil action

About case acceptance; about property preservation.

Foreign arbitration institutions:

1. establishment of foreign-related arbitration institutions

2. China's arbitration agency accepting foreign arbitration cases

China International Economic and Trade Arbitration Commission, China International Economic and Trade Arbitration Commission is located in Beijing, Shenzhen has arbitration committee Shenzhen branch, Shanghai has arbitration committee Shanghai branch.

China Maritime Arbitration Commission and other arbitration institutions that handle foreign arbitration cases.

Foreign arbitration procedure:

1. arbitration application, defence and counterclaim procedure

2. composition of arbitral tribunal

3. trial and Adjudication

Arbitration trial; conciliation; mediation; award.

Recognition and enforcement of Foreign Arbitral Awards:

1. enforcement of foreign related arbitral awards in China

2. recognition and enforcement of Arbitral Awards of Chinese foreign arbitration institutions in foreign countries

Revocation and non enforcement of Foreign Arbitral Awards:

The parties do not have an arbitration clause in the contract or no written arbitration agreement has been reached after the event. The respondent has not received the notice of the appointed arbitrator or the arbitration proceedings, or has not been able to state his opinions for reasons other than the responsibility of the respondent; the arbitration tribunal's composition or arbitration procedure is not in conformity with the arbitration rules; the matters of the award are not within the scope of the arbitration agreement or the arbitration agency has no right to arbitrate.