Concluding Remarks
After China’s accession to the Word Trade Organization,the economy of China has become increasingly integrated with the world economy.Concurrently,there is no doubt that China’s enormous market potential and rapidly-growing domestic economy have become increasingly attractive to foreign companies and investors.Within such a setting,further efforts need to be made to improve China’s legislation and judicial process; otherwise,the interests of China will be undermined in the long run.Deficiencies in the doctrine of ordre public,as applied in the legislation and judicial practice of China,are,among other issues,worth of concern.
The doctrine of ordre public is a double-edged sword.As mentioned supra,in spite of its significance in protecting the public welfare of the forum,the doctrine has been graphically compared to an “unruly” horse,primarily due to its vagueness.However,this horse can be tamed by bringing it into the more-defined confines of a stable,and the main purpose of this article is to do just that.After providing a thorough introduction and systematic review of the doctrine in China’s conception of private international law,the author now summarizes the problems existing either on the plane of legislation or of judicial practice,and put forward my corresponding suggestions.It is my hope that these suggestions will be helpful to Chinese authorities in applying the doctrine better and more scientifically,which both China and foreign countries would stand to benefit from.
It has already been mentioned that the expression of the doctrine of ordre public in Chinese legislation is neither precise nor uniform,the wording related to the doctrine sometimes appearing in terms of “sovereignty,security and social and public interests” and sometimes in terms of “socio-public interests.” Traditionally,the doctrine of ordre public has already suffered criticism due to its elusiveness and imprecise definition; the different wording used in different laws has only made matters worse.Moreover,aside from the lack of uniformity in terminology,the currently applied expressions are simply not broad enough to cover the entire scope of ordre public,insofar as they fail to acknowledge that fundamental principles of law and morality are also important elements of the doctrine.In this light,the author suggests that future legislation be drafted to adopt the more formal expression of the doctrine,explicitly referring to the term “ordre public.” Only in this way can the doctrine be made more manageable.
Furthermore,prior to the Conflicts Act,there were no provisions to govern what law should be applied as a substitute for the foreign law that would normally be applicable in the case,but has instead been excluded.Given the widely accepted international custom and usage,the author suggests that after the foreign law is excluded,the relevant Chinese law should be applied,if necessary.The author does not favor application of the domestic rule,without exception,under these circumstances.In this regard,it is submitted that Article 15 of the Conflicts Act still needs improvement and amendment.
More importantly,as an exception to the application of foreign law,the ordre public reservation should be interpreted restrictively and invoked prudently.In light of this,the author suggests that more restrictive words,such as “manifestly,” should be added into the ordre public reservation rule (i.e.,“a foreign law that is otherwise applicable is excluded if its application is manifestly incompatible with the ordre public of the State”).
Finally,it is important to note that as stated earlier,one of the most striking features of the doctrine of ordre public in Chinese legislation prior to the Conflicts Act is that the ordre public reservation is targeted not only at foreign laws,but also at international practice.The author believes that there is no need for recourse to the ordre public reservation as a rationale for excluding the relevant international practice,as Article 142 of the GPCL states clearly that the application of international practice is in any case a matter of discretion,rather than mandatory.In this light,the modification made by Article 15 of the Conflicts Act is welcomed.(https://www.daowen.com)
Of course,as a result of the inherent amorphousness of the doctrine,legislation by itself cannot and need not account for every possible situation in the application of the ordre public.Consequently,judges are left with considerable discretion in deciding whether to invoke the doctrine of ordre public in any particular case.Given the increasing interdependence of all countries in today’s globalizing world,the author suggests that judges should be very scrupulous when exercising such power.
In this light,the author puts forward the following framework for application of the doctrine of ordre public:
A foreign law that is applicable pursuant to the conflict rules of China is disregarded if its application would manifestly violate the ordre public of China.In its stead,courts should apply the relevant Chinese law or the law of whichever forum that has the most significant relationship with either the litigants or the cause of action.
Specifically,the author suggests that Chinese courts should not invoke the ordre public reservation,save under the following circumstances:
First,application of the foreign law is manifestly offensive to the basic spirit of the Constitution.Second,application of the foreign law outrages the sovereignty and security of the State.Third,application of the foreign law contravenes the basic principles of the laws of the State.Last,application of the foreign law is contrary to the responsibilities prescribed in international conventions concluded or acceded to by China,or to the principle of justice and equality generally established by international law.