1、 Questions raised
Foreign commercial contract is one of the legal documents that foreign lawyers must face and deal with. Due to the different legal provisions related to the conflict of laws rules for commercial contracts in different countries, there are even conflicts in the application of some aspects. Such conflicts may lead to the same international commercial contract being judged by the courts of different countries according to different applicable laws of the contract, resulting in judges from different jurisdictions making completely different or even conflicting judgments. The current situation of such international and domestic laws is an objective reality in the globalization today and is difficult to change in the short term. Based on this, as a qualified foreign-related lawyer, we should understand the conflict of laws rules of different countries and jurisdictions, and avoid risks when reviewing and drafting contracts. The purpose of this paper is to introduce the conflict rules of foreign-related commercial contracts in China, the United States and the European Union, and make a brief comparative study. It should be pointed out that the commercial contract referred to in this article is a contract between equal subjects concluded on the basis of commercial transactions and activities, and labor contracts, consumption contracts and other non-commercial agreements are not within the scope of this article.
China
Article 41 of the Law of the People's Republic of China on the Application of Law in Foreign-related Civil Relations stipulates that the parties can choose the law applicable to the contract by agreement. If the parties have no choice, the law of the habitual residence of the party whose performance of obligations best reflects the characteristics of the contract or other laws most closely related to the contract shall apply. It can be understood from Article 41 that the mainland of China has adopted the "theory of autonomy of the will" and the "theory of the closest connection" for the legal application of foreign-related commercial contracts, and has improved on this basis. According to this clause, the parties to the contract can independently choose the applicable law of the contract to regulate the contract. If the parties do not choose the law, the law of the residence of the party with the contract characteristics or the law with the closest connection shall be adopted. Within this scope, the judge is free to decide the specific choice of the contract characteristics and the law with the closest connection, The legislative design here is one of the highlights of the legislation of the Law of the People's Republic of China on the Application of Law to Foreign-related Civil Relations. Before the promulgation of the Law of the People's Republic of China on the Application of Laws in Foreign-related Civil Relations, the Supreme Court specifically stipulated the connection points and applicable laws of the most closely related laws by way of enumeration. [1] After the introduction of the new law, the application of the principle of the closest connection has become more flexible, and the judge can make a comprehensive judgment based on the specific case.
In addition, according to the provisions of Articles 4 and 5 of the Law of the People's Republic of China on the Application of Law in Civil Relations Involving Foreign Affairs, the choice of the applicable law of the contract is also subject to the mandatory provisions of China and the protection of public interests. The provisions of Article 4 and Article 5 are internationally accepted "mandatory rules" and "public policy" restrictions, aimed at protecting the public interests of the country or jurisdiction from infringement.
United States
The United States is a federal country. The "Full Faith and Credit Clause" and "Due Process Clause" are adopted in the national constitution to regulate the conflict of laws between different states in the United States and the unification of conflict rules between them. At the same time, it also defines the consideration of the public interests of the United States when applying foreign laws. The restrictions on "mandatory rules" and "public policy" also apply to the United States.
In terms of the conflict rules of the United States on foreign-related commercial contracts, 47 of the 50 states have accepted the application of the provisions of "the second restatement of the United States conflict of laws". [1] The relevant provisions of foreign-related commercial contracts are sections 187 and 188. The main content of section 187 is to recognize the validity of the express choice of the law applicable to the contract between the parties to the contract, that is, to recognize the express "principle of autonomy of will". Section 188 specifies how to determine the applicable law of the contract without the parties to the contract choosing the applicable law of the contract. [2] The provisions of section 188 can be understood as that the United States also generally applies the "principle of the closest link". However, unlike China, which gives judges greater discretion, the United States has adopted the enumeration method to regulate the scope of consideration of the most closely related place of the contract, so as to ensure that the choice of the applicable law of the contract in the same case by all courts is as consistent as possible. At the same time, Section 188 (3) provides more specifically that if the place of contract negotiation and the place of contract performance are in the same place, it can be considered that this place has a very close relationship with the contract, and the law of this place should generally be applied as the applicable law of the contract. This article reflects the logic of the favor negotii reasoning in the consideration of the applicable law of the contract in the United States conflict law. At the same time, this provision also gives a very clear guidance to the judge. In the judgment, there are more specific criteria for the determination of the most closely connected place. Of course, it also limits the judge's discretion.
[1] Symeon C. Symeonides, American Private International Law (Wolters Kluwer, 2008) 46.
[2]  Section 188:
(1) The rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles stated in § 6.
(2) In the absence of an effective choice of law by the parties (see § 187), the contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:
(a) the place of contracting,
(b) the place of negotiation of the contract,
(c) the place of performance,
(d) the location of the subject matter of the contract, and
(e) the domicile, residence, nationality, place of incorporation and place of business of the parties.
These contacts are to be evaluated according to their relative importance with respect to the particular issue.
(3) If the place of negotiating the contract and the place of performance are in the same state, the local law of this state will usually be applied, except as otherwise provided in §§ 189-99 and 203.
 
EU
With the advancement of the EU integration process, the EU's unified legislation is also being improved. The provisions on conflict of laws, especially in the field of commercial contracts, are one of the core legislative points of the European Commission. The legislation on the conflict rules of foreign-related commercial contracts can be found in the Rome I Regulation [1]. Article 3 of Rome Rule 1 mainly stipulates that when the parties to the contract choose the applicable law of the contract independently, it directly applies the "principle of autonomy of will". Article 4 stipulates the situation when both parties have not chosen the law at the time of the contract. It should be noted that, similar to the conflict rules of commercial contracts in the United States, the Rome rules do not recognize the implied autonomy of the will, that is, the choice of law that requires clear contract terms or can be clearly and reasonably inferred. [2] Article 4 of Rome Rule 1 provides a complete set of reasoning logic to solve how the parties should decide the applicable law when they do not choose the law. Paragraph 1 of Article 4 points out the applicable law of different types of contracts by listing. It should be noted that the provisions of Rome Rule 1 have made certain innovations here. According to the provisions of Article 4, the contract is not closely related to the law itself, It is the relevant country or jurisdiction, which is different from the conflict rules of China and the United States. The independent discretion of the "most closely related principle" applies to situations where the applicable law of the contract cannot be determined even when the listed content is still available. The legislative model of Roman Rule 1 is very innovative. It uses the enumeration method to regulate the general attributes of common contracts, thus increasing the certainty of the law itself. For special types of contracts, the nature of the contract may not belong to any type of contract or more than one type of contract specified in Paragraph 1 of Article 4. In such difficult circumstances, the decision of the applicable law of the contract needs to be considered according to the specific circumstances of the specific case, so the discretionary provisions in Paragraph 3 of Article 4 reflect the flexibility in the process of respecting the law, This makes the law more operational in practice.
The "mandatory rules" and "public policy" are respectively stipulated in Article 9 and Article 21 of Rome Rules 1 to protect the independence of laws and the unity of legal values in the EU region.
[1] Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law Applicable to Contractual Obligations
[2] The choice of law shall be made "express or clearly demonstrated by the terms of the contract or the circulations of the case"
Analysis and conclusion
Based on the above research on the conflict rules of foreign-related commercial contracts in China, the United States and the European Union, the following conclusions can be drawn.
First, the conflict rules of foreign-related commercial contracts in China, the United States and the European Union generally follow similar legislative practices and theories, and the two classical theories of "autonomy of will" and "the most closely related principle" are applied to different degrees through different ways of legislation, which can also be understood as the common practice of countries on conflict rules legislation. By respecting the management of the parties to the contract for their own contracts and interests, it follows Adam Smith's statement in "The Wealth of Nations" that everyone can achieve the maximum economic efficiency by actively managing their own interests. At the same time, it also reflects the core values of private law autonomy in law. The "closest connection principle" more embodies the wisdom of the legislators of private international law, seeks the most reasonable and fair applicable law of the contract through the effective connection point of the relevant contract, and standardizes the whole reasoning process. From this point of view, it reflects the unified recognition of advanced legal norms and theories in the legislation of all countries.
Second, although China, the United States and the European Union have reached a consensus on the theories and concepts applicable to legislation, there are significant differences in the specific provisions. For example, On the principle of "autonomy of the will In terms of the text content of the legislative document, the legislation of China, the United States and the European Union do not recognize implied autonomy of will, which is quite different from the legislation of conflict laws of countries and regions based on the common law system, such as Hong Kong, Singapore and Australia. However, China, the United States and the European Union have different understandings of implied autonomy of will, for example, the Supreme People's Court's Court on the application of the Article 8 of the Interpretation of Several Issues in the Law of Application of Law (I) stipulates that the people's court shall allow the parties to choose or change the applicable law by agreement before the end of the debate in the court of first instance. Whether this judicial interpretation belongs to the recognition of implied autonomy of the will to choose the law is still controversial in academic circles, but it can be clear that the United States and the European Union have no similar legal provisions and precedents. Another example is the principle of the closest connection. In the Chinese and American legal provisions, the law most closely related to the contract is the applicable law of the contract. However, the provisions of Roman Rule 1 have made certain innovations. According to the provisions of Article 4 of Roman Rule 1, the contract is closely related not to the law itself, but to the relevant countries or jurisdictions. The norms of this point are different from the rules of conflict between China and the United States, The final applicable law of the contract may also be different. Based on this, the difference between the conflict rules of commercial contracts may lead to the fact that in the same case, both parties to the contract sue in different countries, and the court applies different applicable laws of the contract according to different conflict rules, which ultimately leads to different judgments, resulting in the failure of execution.
Third, China, the United States and the European Union have all applied "mandatory rules" and "public policy" to exclude the use of

Based on the study of the conflict rules of foreign-related commercial contracts in China, the United States and the European Union, it can reflect the differences and even contradictions between the conflict rules of various countries, and may cause the so-called "conflict of conflict rules", which brings strong legal uncertainty and risks to the market attributes of commercial contracts and the development of international trade. Based on this conclusion, the author believes that the international uniform legislation of the conflict rules of international commercial contracts is imperative. Today, the international uniform legislation of the conflict rules of commercial substantive law has been hindered for many years, and should be an effective and necessary way to choose.
Author: Lawyer Luo Nan
Ph.D
Senior Researcher of Oxford University Law School, Law Doctor of Melbourne University, CFA Certificate Holder, Hong Kong Lawyer, member of the Hong Kong Bar Association Committee, independent director and senior legal adviser of Goldman Sachs