The Application Of Party Autonomy In Tort Choice-of-law

Lex loci dilicti (the law of the place where a tort was committed)serves as a general rule in the choice of law in tort. However, with the development of economy and the legislative technique, the disputes become more complicated and involve more factors than ever before. It then comes out that the lex loci dilicti appeared a little rigid and aimless, as well as lack of flexibility to some extent. This issue is especially acute when considering the private aspect of tort law. Simply applying the lex loci dilicti rule is unable to adapt to the needs of social development, it’s time to open the door of choice of law in tort. And the introduction of principle of autonomy is a just manifestation of this trend. Since it had been employed in Swiss Federal Private International Law in1987for the first time, the principle of autonomy applied in tort has been recognized by more and more countries.The current rules governing tort in China are regulated in the Law of the People’s Republic of China on Choice of Law for Foreign-related Civil Relationships, which has been adopted at the17th session of the Standing Committee of the11th National People’s Congress on October28,2010. This law has a significant influence in employing the party autonomy rules to the foreign tort area. While this special regulation has infected a new vitality in the choice of law in foreign-related civil relationships, it brings some simplicity and ambiguity as well,which arises some controversy among scholars and needs further research.My note can be divided into five parts. After introducing the theme and the aim of this very subject in the first part, I will go to present the evolution clause of lex loci dicilti and the difficulties before it, in order to something related to party autonomy rules,such as the birth, the context and its recent development. In my third part, I’d like to emphasize on the application of party autonomy when considering the legislation in some other countries worldwide. The application process may refer to specific details about the parties, the time when party autonomy can apply, the manner in which party autonomy can work out and the occasion on which do party autonomy can apply. As is known to all, hurdles can promote the progress otherwise, so in the forth part, I mainly focus on the limitations of the party autonomy, in order to draw the attention of the legislature to improve the application of the rule. At last, I will show you the party autonomy in our legislation, especially in the foreign-related civil relationships. After that, based on the aforementioned analysis, some proposals about how to apply the rules much better in the related areas will be listed.This article mainly employ the relative analysis approach. Compared the legislation in the worldwide with ours, I am trying to borrow advanced ideas from other developed countries and then to do some help to develop the international private law in China.