Abstract

Recently, the People’s Republic of China embarked on the process of drafting a code of private international law (PIL) for the application of laws to legal relationships in civil and commercial matters involving foreign elements. The article provides historical context for the current discussion on PIL. The article then provides background on the current statutes and judicial opinions, which leads to the article’s support for the necessity of codification of PIL.

By examining the current legislative initiatives to adopt a PIL code, this article concludes that the Chinese legislature should and is most likely to use a code on the application of laws to legal relationships in civil and commercial matters involving foreign elements, which contains exclusively conflicts rules. The article uses the following arguments to support this conclusion: 1) Conflicts rules and rules on international jurisdiction have historically been governed by separate statutes in China. 2) The Chinese legislature has historically been unwilling to adopt a comprehensive code containing both conflicts rules and international procedural law rules. 3) China is a contracting party of a number of international conventions on international civil procedure including judicial mutual assistance. 4) The Chinese legislature treats PIL as an integral part of the future Chinese civil code, and they are unwilling to be rushed into drafting it all at one time. The author concludes that codification will provide greater legal certainty and predictability on the one hand, and necessary flexibility and adaptability on the other hand.


I. Introduction

The People’s Republic of China (PRC) is drafting its first comprehensive code of private international law (PIL) since the founding of the People’s Republic in 1949. In order to guarantee high quality legislative work, the Chinese legislature has to observe and follow some new trends embodied in the recent codifications or reforms of PIL in foreign countries, and the legislative work shall be based on in-depth comparative studies of PIL. In this regard, successful experiences and advanced solutions of foreign PIL codifications or reforms may serve as useful models for the Chinese legislature.

This article may serve as a humble academic contribution to the ongoing debate on the codification of China’s PIL. It begins with a general survey of the necessity of codification of China’s PIL from the perspective of historical development. It then analyses the current necessity of codification of China’s PIL and efforts thereof, in which the author articulates six reasons for PIL codification in China today and comments in particular the efforts made by the Chinese Society of PIL and the so-called “Model Law of PIL of the PRC”. In the context of the most recent legislative initiative of the Chinese legislature, the author argues for a statute on the application of laws as the legislative model of the future Chinese PIL code, which could even be inspired by the historical tradition and the past experiences of China’s PIL. Before discussing the current necessity of codification of China’s PIL, it seems necessary to have a general survey of the necessity of codification of China’s PIL from the perspective of historical development, for, in the words of Oliver Wendell Holmes, Jr., “the life of the law has not been logic: it has been experience … In order to know what it is, we must know what it has been, and what it tends to become.”