International Sources
3.1 International Convention
Since the second half of the 19th century,international convention has become an important source of private international law.As a matter of fact,it is the increasing importance of international convention as one of the sources of our subject that renders it entitled “private international law.”11
International conventions on private international law can be classified in two ways: according to their scope or area or according to their subject-matter.As regards the former,there is an obvious difference between bilateral treaties,such as the bilateral Treaty between China and France on Judicial Assistance in Civil and Commercial Matters of May 4,1987,and multistate conventions which in turn may be either universal (such as the Hague Conventions on Private International Law12) or regional (such as the European Union Regulation on the Law Applicable to Non-contractual Obligations (“Rome II” Regulation (Reg.(EC) No.864/2007)).This distinction can be applied irrespective of the substance of this convention,i.e.,irrespective of its comprehensiveness or specialization in subject-matter.
In connection with subject-matter we can divide the conventions of private international law into various categories as follows:
(1) Comprehensive conventions,such as Montevideo Treaties of 1899 (amended in 1939-1940),the Codigo Bustamente of 1928.
(2) Conventions of conflict of laws,such as the Hague Convention of the conflict of laws in regard to Marriage of June 12,1902,the Protocol of November 23,2007 on the Law Applicable to Maintenance Obligations,the Convention of July 5,2006 on the Law Applicable to Certain Rights in Respect of Securities held with an Intermediary.
(3) Conventions of substantive private international law,such as United Nations Convention on Contracts for the International Sale of Goods (CISG),Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks.(https://www.daowen.com)
(4) Conventions on international civil procedure,such as Convention of November 15,1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters,Convention of October 5,1961 on Abolishing the Requirement of Legalization for Foreign Public Documents,and Convention of June 30,2005 on Choice of Court Agreements.
(5) Conventions on international commercial arbitration,such as the New York Convention of 1958.
There is no need to reproduce the lists of conventions of private international law here which can be found in many textbooks;13 however,we cannot leave the subject of private international law conventions without referring to one of the most fundamental problems raised by this form of international legislation.In the case of Netherlands v.Sweden,14 Judge Lauterpacht based his opinion on the principle that the courts of a state party to a choice of law convention could,in an appropriate case,refuse to apply the law normally applicable under the convention if to do so would produce a result incompatible with the ordre public of the judge’s country.This view that the exception of ordre public applies not only to the choice of law rules which a state has given to itself autonomously but also to those it has internationally undertaken to observe,has gained more and more recognition which is also endorsed by most Chinese scholars.15
3.2 International Custom and Practice
The Statute of International Court of Justice refers to “international custom,as evidence of a general practice accepted as law,” as a second source of international law.16 Custom,whose importance reflects the decentralized nature of the international system,involves two fundamental elements: the actual practice of states and the acceptance by states of that practice as law.The actual practice of states (termed the “material fact”) covers various elements,including the duration,consistency,repetition,and generality of a particular kind of behavior by states.All such elements are relevant in determining whether a practice may form the basis of a binding international custom.The ICJ has required that practices amount to a “constant and uniform usage” or be “extensive and virtually uniform” to be considered binding.17 Once a practice becomes a custom,all states in the international community are bound by it whether or not individual states have expressly consented—except in cases where a state has objected from the start of the custom,a stringent test to demonstrate.Customs can develop from a generalizable treaty provision,and a binding customary rule and a multilateral treaty provision on the same subject matter (e.g.,the right to self-defense) may exist at the same time.
Then,apart from conventions,is there any international conflicts law established by custom within the international community of states? According to an opinion universally obtained,each member of the international community is bound to have some sort of conflicts law,in order to leave to other states the power of adjudicating situations,persons or things,exclusively belonging to their respective domains.18 Nevertheless,it should be noted that in the domain of conflict of laws,international custom in strict sense is not easy to find,though there are certain rules of almost universal force,such as the rules that the law of the situs governs immovable property,that the formalities of legal acts are determined by the law of the place where they occur,or that the procedural matters are governed by the lex fori.These rules were established by the statutist doctrines many centuries ago,and were universally accepted.Though whether they should be recognized as international custom or practice is controversial,it is undoubted that they are a source of private international law.Of course,outside of the domain of conflicts law,public international law has important aspect for treatment of foreigners,and assumption of jurisdiction which also constitute part of sources of private international law.