2.Scope
As mentioned above,private international law deals with issues that spill across national lines; nevertheless,scholars around the world have never reached consensus on the scope of the subject; the following paragraphs,therefore,attempt to provide a tentative description of the different arguments on this issue from the perspective of comparative law.
2.1 Common Law Approach
In common law countries,conflict of laws,or private international law,is a body of rules designed to determine whether domestic or foreign law is to be applied when a domestic court is faced with a claim that contains a foreign element.3 The peculiarity of private international law in common law doctrines is that it has no material content,in the sense that it does not provide any immediate solution to a particular dispute,but merely indicates the legal system which is competent to provide the rules to be applied.4 Specifically,conflict of laws in common law countries poses three questions; or to put it another way,here are three main aims of this subject which are as follows:
● First,to set out the conditions under which a court is competent to hear an action.This is the question of jurisdiction.
● Second,to determine by what law the rights of the parties are to be ascertained.In a contract dispute,for example,it is necessary to determine the law governing the contract (its “applicable law”).This is the question of choice of law.
● Third,where a dispute has been litigated in another country,to specify the circumstances in which the foreign judgment can be recognized and enforced by action in domestic country.This is the question of recognition and enforcement of foreign judgments.5
In this light,conflict of laws in common law countries is not a separate branch of law in the same sense as,say,the law of contract or of tort.It is all-pervading.As Frederic Harrison noted:
“It starts up unexpectedly in any court and in the midst of any process.It may be sprung like a mine in a plain common law action....The most trivial action of debt,the most complex case of equitable claims,may be suddenly interrupted by the appearance of a knot to be united only by Private International Law.”6
Nevertheless,conflict of laws is a separate and distinct unit in the legal system of common law countries just as much as the law of contract or of tort,but it possesses this unity,not because it deals with one particular topic,but because it is always concerned with one or more of the three questions listed above,namely,jurisdiction,choice of law,recognition and enforcement of foreign judgments.7
2.2 French Approach
Pursuant to French doctrine,“private international law” (droit international privé) combines choice of law rules,the rules of legal status of foreigners,jurisdictional rules and the law of nationality.8 This last subject,concerned with the rules granting or refusing to grant foreigners equal treatment with nationals,in theory,is completely different from conflicts law primarily as choice of law.It presupposes that the law applicable to aliens has been selected and found to be internal law of the state.For this reason,it is not regarded in most other countries as part of private international law or conflict of laws.9 Hence it is quite apparent that the scope of private international law in France is broader by far.In fact,the scope is so broad that the French scholars define private international law as “all rules for private parties in international relationships.”10
2.3 German Approach(https://www.daowen.com)
Compared with French doctrine,German doctrine on the scope of private international law (internationales privatrecht) is quite different,insofar as German scholars believe the law of nationality is public law rather than private law,and the rules concerning the legal status of foreigners in nature is internal law rather than international law.For this reason,the law of nationality,and the legal status of foreigners are not regarded as part of private international law in Germany.The scope of private international law,as a consequence,is much narrower.11
2.4 Chinese Approach
The scope of private international law has been much debated among legal scholars in China,as well as in the former Soviet Union and the countries of former socialist Eastern European Countries.To common law scholars,the issue of whether the field of private international law is confined to conflict rules,or also includes substantive international and domestic regulations on transnational civil and commercial matters,seems an unimportant one.The problem,however,has captured the interest and imagination of socialist legal academics,whose concern for the classification of laws into specific subject areas perhaps stems from,or is related to,a general tendency to compartmentalize and rationalize their fields of specification.12
As a premise,Chinese private international law scholars believe it is useful to classify legal rules regulating transnational matters into two categories: those which are direct rules of substantive law,and those which are indirect,such as choice of law rules.13 Based upon this classification,it is submitted that three schools of thought can be identified with respect to the scope of private international law in China.
Modeled upon the Anglo-American approach,the first school is essentially based upon indirect rules concerning the selection of appropriate governing law,and views private international law as including only conflict of laws rules and the rules concerning international civil procedure.14
The second,more popular,theory regards private international law as incorporating,in addition to the indirect rules mentioned above,direct rule of substantive law created by international treaties governing transnational civil and commercial matters between member states—for example,the UN Convention on Contracts for the International Sale of Goods (CISG).15
The third approach,adhered to by the majority of Chinese private international law scholars,is even more broadly based and in addition includes all domestic substantive law governing transnational civil and commercial affairs.To be more specific,it contains,inter alia,the following rules: jurisdictional rules,conflict rules,substantive rules and procedure rules if only they concern the relation involving foreign elements.Professor HAN Depei,[2]the founder of Chinese private international law,formulates an “Airplane Doctrine” which compares private international law to an airplane with two wings.He specifies that choice of law rules and substantive rules governing transnational civil and commercial affairs constitute the fuselage,while rules of nationality and of legal status of foreigners,international civil procedure rules and international commercial arbitration rules constitute the two wings respectively.16
The body of private international law,under this doctrine,thus becomes very extensive which covers not only conflict rules and jurisdictional rules but also substantive rules contained both in domestic law and international law.As a matter of fact,given the broad scope of private international law under this interpretation,Professor HAN advocates that “international civil and commercial law” is a more appropriate name for this discipline.
Therefore,a typical Chinese textbook on private international law would include general principles of conflict of laws,specific conflict rules,substantive regulations by international treaties,domestic legislation on foreign trade and investment,the legal status of alien,and finally laws on international civil procedure and commercial arbitration.
Although consensus has not yet been reached among Chinese scholars as to the scope of private international law,the last approach has been regarded as the orthodox view.Part of the impetus for a broad scope of private international law seems to stem from the general belief in socialist thought that,ultimately,the preferred way to adjust international civil and commercial affairs is through the international unification of substantive law.17 Thus,under the latter two schools,the function of private international law is seen not only to direct the parties towards a governing law,but also to adjust and regulate the transnational legal problems directly between the parties.
There is no doubt that the Chinese scholars,in arguing for the inclusion of international and domestic rules in private international law,show the influences of former Soviet Union.Yet,in a practical sense,the argument may be more closely related to the manner in which international economic and commercial law has developed in China.Till the 1990s,the substantive law concerning international commercial matters,i.e.,international economic law as it is now termed,was embryonic,and was traditionally studied primarily by private international lawyers.It is natural that the majority of them consider the substantive law,as well as conflict rules,as falling within their domain.
However,as both areas develop,international economic law is emerging as an independent field of concern.With the growth of both disciplines,each has become a separate area of study nowadays,and in the author’s opinion,it is inevitable that Chinese scholars,like common law counterparts,will come to embrace the narrower scope of private international law.For this reason,this book follows the Anglo-American approach and deals with three issues,i.e.,jurisdiction,choice of law and recognition and enforcement of foreign judgments and awards.