On Mandatory Rules Of Third-countries In The International Private Law

The topic that whether mandatory rules of third-countries can be directly applied or not like the mandatory rules of the court-located country has becoming very hot in the field of International Private Law. From the perspective of comparative law, this essay discusses about the application of mandatory rules of third-countries from four parts, on the basis o f legislation and practices.The first part mainly introduces the definition and features of mandatory rules of third-countries. Mandatory rules of third-countries refers to those laws do not belong to the applicable law; also is not the law of the forum, but for maintenance purposes of major public interest of a country. Mandatory rules of third-countries have four clear characteristics. From the view of function, they are to maintain public order of the third- countries. As to the content, they are belonging to the substantive laws, rather than the procedural laws. On the whole, they do not constitute an exact and complete legal system. From the applicable method, they can be directly applicable, do not need conflict rules’ guide and the choice of the parties.The second part discusses about the necessary of the application of mandatory rules of third-countries. Because of the need of international comity, mandatory rules of third- countries’ application can be regard as respect of the third country’s sovereignty, and also meet the requirements of the reciprocal. In order to make the judgment to be recognized and implemented by the third-country, mandatory rules of third-countries can be applied directly by the court. In order to prevent the evasion of law, mandatory rules of third- countries should be applied directly. In addition, the application of mandatory rules of third-countries can achieve fairness and justice.The third part introduces the principles of application of mandatory rules of third- countries. Only the third-country be closely-linked with the disputes, can its mandatory rules be applied. This principle is called the closely-linked principle. What’s more, the mandatory rules of third-countries must not betray the public order of the country where the court in, or mandatory rules of third-countries can not be applied by the court. This principle is called the reservation of public order principle.The forth part discusses about the ways that mandatory rules of third-countries be applied. As to the application of mandatory rules of third-countries, the judge can decide it is be applied or not. But this power has some limitations. The application of mandatory rules of third-countries mainly has two ways: one is be applied indirectly by means of the abstract concept of the court law or the public policies; the other is be applied directly. The mandatory of third-countries has a trend of being applied directly.