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As to the choice of law and application of law in this case, the Maritime Court held after the first trial that the application of the 1936 American Law of Marine Transportation of Cargo, which the parties chose to apply to the case and stipulated in the first provision of B/L, was in line with article 269(1) of the 1995 Maritime Code of the PRC which provides that the parties to a contract may choose the law applicable to such contract, unless the law provides otherwise. The principal controversy in this case is whether the carrier can deliver the goods to the named consignee out of the origin B/L. However, the 1936 American Law of Marine Transportation of Cargo fails to address this point, and as a result the parties’ choice of law had no effect and the contract was considered to contain no choice of law. Therefore, based on article 269(2) of the 1995 Maritime Code of the PRC, where the parties to a contract have not made a choice, the law of the country having the closest connection with the contract shall apply. In this case, there are many connection points including the place of conclusion of contract, the place of performance of contract (the place of origin of shipping and the destination of shipping), the seat of business and the subject matter, etc., and the key issue of controversy between the parties is the legal consequence which is produced by the action of delivery of the goods during performance of this contract of shipping at sea. Because this dispute took place during delivery of the goods in an American harbor, the carrier’s action of delivery in the destination of shipping is governed by the law of the place of delivery of goods, i.e. American law, which is closer than Chinese law to the place of conclusion of contract or the place of origin of shipping. In addition, the parties’ contract adopted a form B/L provided by the carrier that must be in accordance with the law of the seat of business of the carrier, and so, the seat of business of the carrier is one of the most significant elements. Based upon the above grounds, the American law was the most significant law and should be the applicable law governing this case. The court backed the claim of the defendant, Brilliant Co. that the court should apply in this case the relevant American law, e.g., Uniform Commercial Code of USA, etc.
IV.A.3.b. A Brief Analysis
Facing this case, the Maritime Court respected the autonomy of the parties first of all, and then chose the 1936 American Law of Marine Transportation of Cargo as the law to apply in this case. As a result of the failed attempt at choice of law, the court had to consider the issue of applicable afresh. According to the principle of the most significant relationship, the court seriously analyzed any connection point relating to this case, and then drew the conclusion that America was the most significant country in this case, so it should apply relevant American law in the case.
The Maritime Court resolved the problem of applicable law in this case at last by applying the principle of the most significant relationship when the law chosen by the parties in advance does not exist in fact. Therefore, as to the choice of law and the method of finding applicable law, it may be said that the approach of this case gives a significant model to Chinese courts that especially prefer to apply domestic law.
V. Conclusion
As we have seen, the Chinese judicial practice in private international law in 2001 has two sides. It gains a lot but some problems exist at the same time. Under a climate of relatively light legislation, the Supreme People’s Court issued some relevant judicial interpretations aimed to solve some problems concerning jurisdiction, applicable law and judicial assistance, etc., and to provide direction to lower courts for dealing with similar cases in the future. However, there are some rules in some of the judicial interpretations that were neither reasonable nor scientific. The Supreme People’s Court should therefore henceforth improve the quality of its judicial interpretations, either in legality or in reasoning, to ensure effective enforcement of the judicial interpretations.
In trials relating to foreign-related matters, Chinese courts have accumulated much experience. Some courts changed abstract, conflicting rules into lively factual rules in the their judging, i.e. application of law and enforcement of law, and some courts handled many difficult problems in the light of spirit of legislation and theories of conflict law. However, there are many problems at the same time. There are not many true international cases; the establishment of jurisdiction is short on reasonableness in some cases; the tendency to apply Chinese law is obvious; the reasons for the application of law are not clear, etc. Chinese courts therefore need to adopt some measures in the future to re-establish the good image of the judiciary, to provide training for judges, to enhance the level of jurisprudence, and to improve the reasoning in the judgments, and so forth.
【注释】 * Professor of Law and Director, Wuhan University International Law Institute, PRC; Standing Vice-President of Chinese Society of Private International Law (CSPIL); Vice-President of Chinese Society of International Law (CSIL); Arbitrator of International Court of Arbitration for Sports (CAS); Arbitrator of Chinese International Economic and Trade Arbitration Commission (CIETAC); Member of the International Arbitration Commission of China Chamber of International Commerce (CCIC); Member of the Advisory Board, Yearbook of Private International Law (Kluwer Law International); Chief Editor of Chinese Yearbook of Private International Law and Comparative Law; Chief Editor of Wuhan University Law Review.
>] Doctoral Candidate, Wuhan University International Law Institute, PRC; L.L.M., Zhongnan University of Economics and Law, China, 2002.
See F. K. Juenger, Choice of Law and Multi-State Justice 7-45 (1993).
See J. A. C. Thomas, Private International Law 21 (1975); F. K. Juenger, supra note 1, at 11.
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