Tacit Choice On Choice Of Law In International Contracts

The tacit choice of law is about communication,or more about communication when there are flaws between partners in cross-border business transactions.It has something to do with the parties’ failure to express their choice of the law applicable to the contract for some reason.The cause of the lack may be due to negligence,or because of commercial intent,etc.Nearly 600 years ago,the theory of party autonomy was developed from the concept of tacit choice of law.So far,party autonomy has become the first principle of the application of contract law,which is recognized by most national legislations.Unless there are limited exceptions,the law chosen by the parties governs the contract.The express choice of law is self-evident.It is much harder to make that choice work when there is no express choice.The legislatures and judicial organs of various countries are still troubled by the problem of tacit choice.The main reasons being that the concept of "choice" is vague,and there are no applicable standards for judging the tacit choice of law.The various indicators formed in the practice of common law cases are not fair and reasonable enough.The research object of this paper is the tacit choice in the choice of international contract law.Through the analysis of the "tacit choice" term in international treaties and national laws,Exploring the basic meaning of tacit choice.Based on the related theories and practices of the Party Autonomy,the Proper Law of the Contract and the Doctrine of the Most Significant Relationship,this paper analyzes the endogenous conflicts of tacit choice system and discusses the legitimacy and rationality of tacit choice.At the same time,this paper analyzes the extent to which tacit choice must be demonstrated in order for the court to give it effect and the indicators that evidence a tacit choice.On this basis,this paper re-evaluates the relationship between tacit choiceand express choice,and redefines tacit choice of law.Then,combined with the Hague principles adopted by the Hague Conference on Private International Law,through the analysis of the latest "model legislation" of the current international community,this paper attempts to reconstruct the better expression of the tacit choice terms.Finally,this paper re-examines the attitude of tacit choice in the current legislative and judicial practice of China,and puts forward some tentative propositions that can be used for reference for the current legislative and judicial practice of China.There are three chapters in the main body:Chapter 1: Based on the analysis of the word meaning of "Tacit or Implied",by understanding the natural opposition relationship between "Express" and "Tacit or Implied" in language structure,and from the general meaning of express choice,the basic meaning of tacit choice in the general sense is obtained.Then,this chapter explores the extension theory related to tacit choice,and gives examples of implied choice rules in the practice of international treaties and domestic legislation of various countries,and makes a preliminary understanding and analysis.It paves the way for the following discussion on the tacit choice as the endogenous theory of the private international law system and the revision of the concept of tacit choice and the re-construction of the rules.This chapter holds that the basic meaning of tacit choice is that the parties to the contract do not clearly express the law applicable to the contract,but they express their intention to choose the law through the terms of the contract,the act,the facts of the case and so on.Chapter 2: Starting with the theories related to the application of contract law in private international law,this paper discusses the endogenous conflict of tacit choice system by analyzing the basic theories of the Principle of Party Autonomy,the Proper Law of the Contract and the Doctrine of the Most Significant Relationship.The tacit Choice in current practice is a system containing multiple paradoxes.This chapter holds that one of the paradoxes of tacit choice is that from the historical origin and functional orientation of Party Autonomy,tacit choice is the inherent requirement of the Principle of Party Autonomy.If the tacit choice is not recognized,then Party Autonomy is not thorough.It’s also against fairness and efficiency.However,the way to draw the conclusion of tacit choice through "presumed intention/ inferred intention" leads to the evolution of tacit choice into the law of judge selection,which deviatesfrom the original intention of Party Autonomy.The dual paradox of implied choice is that,starting from the three-level classical expression of the Proper Law of the Contract,tacit choice has been absorbed by the Doctrine of the Most Significant Relationship and has lost the soil of existence.In addition,through the analysis of the practice of common law,this chapter discusses the dilemma of judicial application of tacit choice system.Both the indicators and the standard of proof are "illusory" and "vague".The tacit choice of the operation of this kind of judicial application rules deviates from the certainty and predictability of the application of the law,which is the fundamental requirement of the parties’ choice of law.This can also be said to be the third paradox of tacit choice.Chapter 3: This chapter discusses the positioning of implied selection,concept revision and rule reconstruction.The current way in which tacit choice is defined places tacit choice on the opposite side of express choice,or at least does not have identity.It ignores that the tacit choice,like the express choice,is the essential attribute of the real intention of the parties,and the difference lies only in the indirectness of the ideographic form.Therefore,it is necessary to redefine the tacit choice.In this chapter,it is considered feasible to absorb tacit choice as a narrow subcategory of express choice.The tacit choice is included in the concept of express choice in a broad sense,which reveals that the essential attribute of tacit choice is the true and definite intention of the parties.At present,the Hague Conference on Private International Law is exploring a global model for the application of the law of international contracts.The Hague principles,adopted in 2015,are the latest results of the international community on the rules applicable to conflicts of international commercial contracts.Although the Hague principles is a non-coercive soft law,as a model of expert legislation,it provides a reference for the domestic legislative reform of various countries.This chapter analyzes the legislative norms of "tacit choice" in the Hague principles,from the single clause to the analysis of systematic rules,reconstructs the rules of implied choice,and puts forward some suggestions on the reform of the applicable law of China.Legislation should leave room for implied choice.The Hague principles may be adopted in the design of the rules.On the premise of affirming the express choice,the tacit choice that can be determined by the terms of the contract and the facts of the case is recognized.This tacit choice must beextremely strict and quite clear.Secondly,it refines the existence of tacit choice through judicial interpretation in order to guide judicial practice.Finally,this chapter puts forward an idea of the process of judicial application,because tacit choice is important only if the applicable law of contract is different from the law of tacit choice.In a word,law,as a science to guide practice,cannot only exist in the minds of jurists.Legal system,legal rules and even legal principles always need to be defined,expressed and explained by means of language and writing.However,due to the limitations of language,the elaboration,understanding and practice of "tacit choice" are chaotic at this stage.This paper holds that because "tacit or implied" is placed on the opposite of "express" that tacit choice is applied to judicial practice by means of hypothetical intention,presumed intention and inferred intention,and evolves from "party’s autonomy" to "judge’s autonomy".In addition,too much emphasis on "tacit or implied",it ignores that both tacit choice and express choice are the expression of the real existence of the parties.And the difference lies only in the indirect way of expression.However,the uncertainty and fuzziness of the indicators and the standard of proof in practice once again undermine the certainty and predictability of the application of the law as the Principle of Party Autonomy.This paper holds that the concepts of "tacit choice" and "express choice" are not opposed to each other.The tacit choice cannot be completely denied in legislation.The construction of the rules should leave room for tacit choice and pave the way for the application of tacit choice through a holistic legislative framework,but the wording of the rules themselves should avoid the direct use of the expression "tacit or implied".