Developing a model for uniform conflict of laws rules for commercial contracts within Greater China: necessity and possibilities

© 2019 Dr. Nan LuoThis research proposes to study the issue of contractual conflict of laws in Greater China. In this thesis, Greater China refers to the combined jurisdictions of Mainland China, Hong Kong, Macau and Taiwan. Cross-border trade between jurisdictions in Greater China plays an important role in the economic growth of each jurisdiction in Greater China. A “conflict of laws” exists in cross-border transactions because the law of contract within Greater China is not harmonised and the contract law of each of the Chinese jurisdictions differs from that in other countries. It is therefore important to examine whether the existing conflict of laws rules for commercial contracts in Greater China can effectively achieve the goals of promoting legal certainty and improving cross-border trade both in the Greater China Area and with countries outside Greater China. If the existing conflict of laws rules fail to achieve such goals, it would be necessary to examine whether there is a feasible solution to effectively address the contractual conflict problems that might arise because of inconsistency between laws for commercial contracts in Greater China. This thesis addresses three questions relating to the issue of conflict of laws for commercial contracts in Greater China: the rationale for developing a model or models for uniform conflict of laws rules for commercial contracts within Greater China; the possibility or feasibility of developing such model or models; and the development of potential principles for uniform conflict of laws rules for commercial contracts in Greater China. The focus of the thesis will be on the development of conflict of laws rules for disputes within Greater China (interregional conflicts) and disputes between a Chinese jurisdiction and a foreign country (international conflicts). Based on the examination and analysis in this thesis, I conclude that the approach of developing a model or models of uniform conflict of laws rules for commercial contracts in Greater China is necessary and feasible. Certain potential principles for uniform conflict of laws rules for commercial contracts both in international and interregional situations within Greater China are also developed and discussed in Chapter 6 of this thesis