Globalised Maritime Commerce and Challenges for PRC Choice of Law Rules in Defining ‘Party Autonomy'

Abstract

This paper examines the scope and limits of the contractual choice of law provisions in the new PRC Conflicts Law and the Chinese Maritime Code in the context of globalised maritime commerce. Maritime commerce is of special interest because of the intersection or conflict between what is covered by the Maritime Code and what is to be covered by the Conflicts Law; in certain quarters that might conceivably be seen as the appropriate delineation in law for wet and dry shipping. This modest work immediately faces a methodological challenge as regards philosophical hermeneutics. Chinese legal methodology differs from western methodologies of legal inquiry. The approach taken here shall highlight these differences in its inquiry but shall essentially rely on the idea of legal functionalism to argue that the rapid developments in Chinese private international law require legal institutions in the PRC to recognise not only the pragmatism of international shipping and trade, but also, the notion of “party autonomy” itself and the importance of judicial creativity in giving effect to any evolving legal and commercial norms.

Keywords: Conflicts of law, China, EU

JEL Classification: K40