Notes to Chapter Two
1.HENRY MAINE,ANCIENT LAW (Pollock ed.) 82 (1906).
2.See G.STUMBERG,PRINCIPLES OF CONFLICT OF LAWS 225 (3rd ed.,1963).
3.Mo Zhang,Choice of Law in Contracts: A Chinese Approach,26 NW.J.INT’L L.& BUS.292 (2006).
4.JAMES FAWCETT & JANEEN M.CARRUTHERS,CHESHIRE AND NORTH’S PRIVATE INTERNATIONAL LAW 665 (14th ed.,2008).
5.Mo Zhang,Choice of Law in Contracts: A Chinese Approach,26 NW.J.INT’L L.& BUS.293 (2006).
6.Zhonghua Remin Gongheguo Shewai Jingji Hetongfa [Act of the People’s Republic of China on Economic Contracts Involving Foreign Interests](1985) (PRC).
7.Zhonghua Renmin Gongheguo Minfa Tongze [GPCL] Chapter 8 (1986) (PRC).
8.Zhonghua Renmin Gongheguo Hetongfa [Contract Act] art.126 (1999) (PRC).
9.Yves Derains,in ICCA Congress Series No.4,Arbitration in Settlement of International Commercial Disputes involving the Far East and Arbitration in Combined Transportation 283 (P.Sanders ed.,1989).
10.RENMINFAYUAN ANLIXUAN [SELECTED CASES OF PEOPLE’S COURTS] (Supreme People’s Court ed.) (1996) 17071-10 (Shanghai Maritime Court,1991).
11.Pub L No.520,49(1) Stat 1207 (1936).
12.RENMINFAYUAN ANLIXUAN [SELECTED CASES OF PEOPLE’S COURTS] (Supreme People’s Court ed.) S (1996) 987-992 (Jing’an District People’s Court,Shanghai,1995).
13.Guangzhou Maritime Court,as quoted by JIN ZHENGJIA,DIANXING HAISHI ANJIAN PINGXI [Analysis and Comments on Typical Maritime Cases] 291-311 (1998).
14.Qingjiang Kong & Mingfei Hu,The Chinese Practice of Private International Law,3 MELBOURNE J.OF INT’L L.429 (2002).
15.Zuigao Renmin Fayuan Guanyu Shenli Shewai Minshi huo Shangshi Hetong Jiufen Anjian Falv Shiyong Ruogan Wenti de Guiding [Supreme People’s Court,Provisions on Several Issues Concerning the Application of Laws in Hearing the Cases Involving Foreign-related Civil or Commercial Contractual Disputes],1429 Zuigao Renmin Fayuan Gongbao 14 [Bulletin of Supreme People’s Court] art.1 (2007) (PRC); Zhonghua Renmin Gongheguo Shewai Minshi Falvguanxi Shiyongfa [Act on the Application of Laws over Foreign-related Civil Relationships] art.9(2010) (PRC).
16.Zuigao Renmin Fayuan Guanyu Shenli Shewai Minshi huo Shangshi Hetong Jiufen Anjian Falv Shiyong Ruogan Wenti de Guiding [Supreme People’s Court,Provisions on Several Issues Concerning the Application of Laws in Hearing the Cases Involving Foreign-related Civil or Commercial Contractual Disputes],1429 Zuigao Renmin Fayuan Gongbao 14 [Bulletin of Supreme People’s Court] art.2 (2007) (PRC).
17.Mo Zhang,Choice of Law in Contracts: A Chinese Approach,26 NW.J.INT’L L.& BUS.316,(2006).
18.Zhonghua Remin Gongheguo Shewai Jingji Hetongfa [Act of the People’s Republic of China on Economic Contracts Involving Foreign Interests] art.7 (1985) (PRC).
19.Zuigao Renmin Fayuan Guanyu Shenli Shewai Minshi huo Shangshi Hetong Jiufen Anjian Falv Shiyong Ruogan Wenti de Guiding [Supreme People’s Court,Provisions on Several Issues Concerning the Application of Laws in Hearing the Cases Involving Foreign-related Civil or Commercial Contractual Disputes],1429 Zuigao Renmin Fayuan Gongbao 14 [Bulletin of Supreme People’s Court] art.3 (2007) (PRC).
20.FOUCHARD GAILLARD GOLDMAN ON INTERNATIONAL COMMERCIAL ARBITRATION (Philippe Fouchard,Emmanuel Gaillard,Berthold Goldman,Emmanuel Gaillard John Savage ed.) 790 (1999).
21.Mo Zhang,Choice of Law in Contracts: A Chinese Approach,26 NW.J.INT’L L.& BUS.319,289,333 (2006).
22.Koji Takahashi,A Major Reform of Japanese Private International Law,JOURNAL OF PRIVATE INTERNATIONAL LAW,Vol 2:2 320 (2006).(https://www.daowen.com)
23.Zhonghua Renmin Gongheguo Shewai Minshi Falvguanxi Shiyongfa [Act on the Application of Laws over Foreign-related Civil Relationships] (2010) (PRC).
24.See PIERRE A.KARRER,EL.,SWITZERLAND’S PRIVATE INTERNATIONAL LAW 115 (1994).
25.Zhonghua Renmin Gongheguo Laodong Hetongfa [Act on Employment Contracts] (2007) (PRC),arts.58,59.
26.PETER NORTH & J.J.FAWCETT,CHESHIRE AND NORTH’S PRIVATE INTERNATIONAL LAW 564 (13th ed.,1999).
27.Mo Zhang,Choice of Law in Contracts: A Chinese Approach,26 NW.J.INT’L L.& BUS.322 (2006).
28.See Convention on the Law Applicable to Contractual Obligations,art.4,1980 O.J.(L 26) 23.
29.See Zhonghua Renmin Gongheguo Hetongfa [Contract Act] (1999) art.126 (PRC).
30.DICEY,MORRIS AND COLLINS ON THE CONFLICT OF LAWS (Lawrence Collins ed.) 1821 (15th ed.,2012).
31.Mo Zhang,Choice of Law in Contracts: A Chinese Approach,26 NW.J.INT’L L.& BUS.324 (2006).
32.See DICEY,MORRIS AND COLLINS ON THE CONFLICT OF LAWS (Lawrence Collins ed.) 1821 (15th ed.,2012).
【注释】
[1]As Professor Joseph Beale,the reporter of the First Restatement of the Conflict of Laws,pointed out in 1909:“no topic of the conflict of laws is more confused than that which deals with the law applying to the validity of contracts.” A similar comment made by British conflict of laws scholars Cheshire and North was that “the problem of ascertaining the applicable law is more perplexing in the case of contracts than in almost any other area.” Joseph H.Beale,What Law Governs the Validity of a Contract,23 HARV.L.REV.1,1 (1909).
[2]For example,on April 2,1988,the Supreme People’s Court issued “The Opinions Concerning Implementation and Application of the General Principles of the Civil Law of the People’s Republic of China (Provisional),” which contained several articles dealing with contract issues.The Opinions were revised on December 5,1990.On December 19,1999,in order to help implement the Contract Act,the Supreme People’s Court promulgated “The Explanations to Several Questions Concerning Application of Contract Act of the People’s Republic of China.”
[3]Eg.,in the United States,Restatement (Second) of Conflicts of Laws §187(1971) still requires a substantial relationship between the transaction or the parties and the law chosen,unless there is another reasonable basis for the parties’ choice.
[4]The doctrine is normally called the rule of locus regit actum,which means that when a legal transaction complies with the formalities required by the country where it is conducted,it is also valid in the country where it is to be given effect.
[5]Article 44 of the Contract Act provides that:
The contract established according to law becomes effective when it is established.
With regard to contracts which are subject to approval or registration as provided for by the laws or administrative regulations,the provisions thereof shall be followed.
[6]Article 11 of the CISG provides that “[A] contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form.It may be proved by any means,including witnesses.” United Nations Convention on Contracts for the International Sale of Goods,opened for signature April 11,1980,S.Treaty Doc.No.9 (1983),19 I.L.M.671,available at http：//www.uncitral.org/pdf/english/ texts/sales/cisg/CISG.pdf.
[7]For instance,it is believed that the parties cannot,without contradicting themselves,choose a law the application of which leads their contract to be void.As the bona fides parties cannot have intended to conclude an invalid contract,the arguments goes,they cannot have chosen a law which causes it to be void.
[8]In China,all official trade unions are attached to the Committee of the Communist Party at the corresponding level,and independent trade unions are strictly prohibited.See Zhonghua Renmin Gongheguo Gonghuifa [Trade Union Act] (1992) (PRC).
[9]Law Governing in Absence of Effective Choice by the Parties
(1) The rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which,with respect to that issue,has the most significant relationship to the transaction and the parties under the principles stated in s 6.
(2) In the absence of an effective choice of law by the parties (see s 187),the contacts to be taken into account in applying the principles of s 6 to determine the law applicable to an issue include: (a) the place of contracting,(b) the place of negotiation of the contract,(c) the place of performance,(d) the location of the subject matter of the contract,and (e) the domicile,residence,nationality,place of incorporation and place of business of the parties.
These contacts are to be evaluated according to their relative importance with respect to the particular issue.See Restatement (Second) of Conflict of Laws §188 (1971).
[10]First,there are some contracts which cannot be fitted within the concept.With a unilateral contract or a contract of barter,it is impossible to say that one party’s performance is more characteristic of the contract of than the others.Second,the definition of characteristic performance in terms of the performance for which payment is due does not stand up well to close scrutiny.The payment of money was presumably rejected as the characteristic performance because this is a common feature of many contracts and therefore fails to distinguish between different types of contract.Nevertheless,there are some contracts where the payment of money is arguably the essence of the obligation,for example,contracts of pledge or hire-purchase,or repayment of a loan.Presumably,the payment of money can,in unusual cases,constitute the characteristic performance.Third,it tends to confer unwarranted choice-of-law privileges.Those who supply goods or services professionally are usually in the best position to evaluate the risks of doing business internationally and to hedge against them by means of choice-of-law clauses.Giving these enterprises the added advantage of having their own law control without the need to negotiate such a clause serves further to strengthen an already powerful position.FRIEDRICH K.JUENGER,CHOICE OF LAW AND MULTISTATE JUSTICE 59 (2000).