Application of Law of China on Choice of Law for Foreign-Related Civil Relationships (I)

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  • Document NumberInterpretation No. 24 [2012] of the Supreme People's Court
  • Area of Law Civil Law
  • Level of Authority Judicial Interpretation
  • Date issued12-28-2012
  • Effective Date01-07-2013
  • Issuing Authority Supreme People's Court
  • Status Effective

Announcement of the Supreme People's Court
The Interpretations of the Supreme People's Court on Several Issues Concerning Application of Law of China on Choice of Law for Foreign-Related Civil Relationships (I), as adopted at the 1563rd Session of the Judicial Committee of the Supreme People's Court on December 10, 2012, are hereby issued and shall come into force on January 7, 2013.
Supreme People's Court
December 28, 2012
Interpretations of the Supreme People's Court on Several Issues Concerning Application of the Law of the People's Republic of China on Choice of Law for Foreign-Related Civil Relationships (I)
(Interpretation No. 24 [2012] of the Supreme People's Court)
In order to properly try foreign-related civil cases and in accordance with the provisions of the Law of the People's Republic of China on Choice of Law for Foreign-Related Civil Relationships, we hereby issue interpretations concerning the application of this Law by the people's courts as follows:
Article 1 Where a civil relationship falls under any of the following circumstances, the people's court may determine it as foreign-related civil relationship:
1. where either party or both parties are foreign citizens, foreign legal persons or other organizations or stateless persons;
2. where the habitual residence of either party or both parties is located outside the territory of the People's Republic of China;
3. where the subject matter is outside the territory of the People's Republic of China;
4. where the legal fact that leads to establishment, change or termination of civil relationship happens outside the territory of the People's Republic of China; or
5. other circumstances under which the civil relationship may be determined as foreign-related civil relationship.
Article 2 For any foreign-related civil relationship happening before the implementation of the Law on Choice of Law for Foreign-Related Civil Relationships, the people's courts shall determine the applicable laws in accordance with relevant laws and regulations at the time of the occurrence of such foreign-related civil relationship; in case there were no applicable laws at that time, the applicable laws may be determined with reference to the Law on Choice of Law for Foreign-Related Civil Relationships.
Article 3 Where the Law on Choice of Law for Foreign-Related Civil Relationships and other laws have different provisions on applicable laws for the same foreign-related civil relationship, the Law on Choice of Law for Foreign-Related Civil Relationships shall prevail, except the Negotiable Instruments Law of the People's Republic of China, the Maritime Law of the People's Republic of China, the Civil Aviation Law of the People's Republic of China and other special provisions in laws and regulations on commercial field and in laws on intellectual property.
Where other laws instead of the Law on Choice of Law for Foreign-Related Civil Relationships have provisions on the relevant applicable law of any foreign-related civil relationship while the latter hasn't, such other laws shall prevail.
Article 4 Where the application of law of any foreign-related civil relationship involves the application of any international treaty, the people's courts shall allow the application thereof in accordance with Article 142(2) of the General Principles of Civil Law of the People's Republic of China, Article 95(1) of the Negotiable Instruments Law of the People's Republic of China, Article 268(1) of the Maritime Law of the People's Republic of China and Article 184(1) of the Civil Aviation Law of the People's Republic of China except those international treaties on intellectual property that have been or are required to be transformed into domestic laws.
Article 5 Where the application of law of any foreign-related civil relationship involves the application of any international practice, the people's courts shall allow the application thereof in accordance with Article 142(3) of the General Principles of Civil Law of the People's Republic of China, Article 95(2) of the Negotiable Instruments Law of the People's Republic of China, Article 268(2) of the Maritime Law of the People's Republic of China and Article 184(2) of the Civil Aviation Law of the People's Republic of China.
Article 6 Where the laws of the People's Republic of China have made no explicit provisions on the choice of applicable laws on the foreign-related civil relationship by the parties concerned, and the party or parties choose any law for application, then the people's court shall hold such choice as invalid.
Article 7 Where a party claims that the choice of law is invalid because the law chosen by the parties upon agreement has no actual connection with the foreign-related civil relationship in dispute, the people's court shall not support it.
Article 8 Where the parties agree to choose or change the choice of applicable law before the ending of the court debate in the first instance, the people's court shall permit it.
Where the parties invoke the laws of a same country and neither of them has raised any objection to the applicable law, the people's court may determine that the parties have made choice of law applicable to the foreign-related civil relationship.
Article 9 Where the parties invoke any international treaty not yet binding upon the People's Republic of China in the contract, the people's court may determine the rights and obligations between the parties in accordance with the content of such international treaty, provided that such international treaty is not in violation of the social public interests of or mandatory provisions in the laws and regulations of the People's Republic of China.
Article 10 Under any of the following circumstances, the provisions of the laws and administrative regulations in connection with the social public interests of the People's Republic of China, the application of which the parties cannot preclude by agreement, and that can be directly applicable to the foreign-related civil relationship without guidelines on conflict rules, may be determined by the people's courts as the mandatory provisions as set forth in Article 4 of the Law on Choice of Law for Foreign-Related Civil Relationships:
1. where they relate to the protection of the rights and interests of the laborers;
2. where they relate to food or public health safety;
3. where they relate to environmental safety;
4. where they relate to foreign exchange control and other financial safety;
5. where they relate to anti-monopoly and anti-dumping; or
6. other circumstances under which they shall be determined as mandatory provisions.
Article 11 Where a party deliberately produces the point of connection of the foreign-related civil relationship to circumvent the mandatory provisions of the laws and administrative regulations of the People's Republic of China, the people's courts shall determine that it will not produce any validity in application of any foreign law.
Article 12 Where the settlement of a foreign-related civil dispute must be on the precondition of the confirmation of another foreign-related civil relationship, the people's court shall determine the applicable law in accordance with the nature of such precondition issue per se.
Article 13 Where a case involves two or more foreign-related civil relationships, the people's court shall respectively determine the applicable laws thereof.
Article 14 Where the parties make no choice of law applicable to the foreign-related arbitration agreement, nor agree on the arbitration institute or place of arbitration, or they make no explicit agreement thereon, the people's courts may apply the laws of the People's Republic of China to determine the validity of such arbitration agreement.
Article 15 For a place where the natural person has continuously lived for a period of not less than one year as his or her life center at the time of the occurrence, change or termination of any foreign-related civil relationship, the people's court may determine such place as the habitual residence as prescribed in the Law on Choice of Law for Foreign-Related Civil Relationships, except medical treatment, labor dispatch, official duty and other similar circumstances.
Article 16 The people's courts shall determine the place of incorporation registration of the legal person as the place of registration of the legal person as prescribed in the Law on Choice of Law for Foreign-Related Civil Relationships.
Article 17 Where a people's court cannot obtain any foreign law by such reasonable means as provision by the parties, methods as set forth in the international treaties binding upon the People's Republic of China and provision by Chinese and foreign legal experts, the people's court may determine that the foreign law can not be ascertained.
Where, pursuant to the Article 10(1) of the Law on Choice of Law for Foreign-Related Civil Relationships, a party shall provide any foreign law but fails to provide it within the reasonable time limit as designated by the people's court without justifiable cause, the people's court may determine that the foreign law can not be ascertained.
Article 18 The people's courts shall listen to the opinions of the parties on the content of foreign law that shall be applicable and the understanding and application thereof, and if the parties have no objection to the content of such foreign law and the understanding and application thereof, the people's court may confirm the same; and if the parties have any objection, the people's court shall examine such objection and then determine the applicable law.
Article 19 Issues concerning application of law in connection with civil relationships involving the Hong Kong Special Administration Region and the Macau Special Administration Region are subject to these Interpretations by analogy.
Article 20 For foreign-related civil dispute cases happening after the implementation of the Law on Choice of Law for Foreign-Related Civil Relationships, if the trial thereof has not been concluded after the implementation of these Interpretations, these Interpretations shall apply; if the trial thereof has been concluded before the implementation of these Interpretations, but the parties thereto apply for re-trial or they are determined to be retried in accordance with the trial supervision procedure, these Interpretations do not apply.
Article 21 Where these Interpretations are inconsistent with the judicial interpretations previously issued by this Court, these Interpretations shall prevail.