On the Mandatory Application of Chapter Ⅳ of the Chinese Maritime Code
The mandatory application of Chapter Ⅳ of the Chinese Maritime Code refers to the compulsory application of Chapter Ⅳ of the Chinese Maritime Code to contracts of carriage of goods by sea to or from ports of China in foreign trade. The mandatory provisions contained in Chapter Ⅳ of the current Chinese Maritime Code are only applicable when the conflict rules designate the Chinese Maritime Code as the governing law for the contracts of carriage of goods by sea while the laws for the carriage of goods by sea in the United Kingdom and United States and other countries have the effect of mandatory application. In fact,China has urgent practical needs for the mandatory application of Chapter Ⅳ of the Chinese Maritime Code,including the need to protect the interests of shippers and consignees and the need to simplify the application of the laws to contracts of carriage of goods by sea as well as clarify the rights and obligations of the parties. The mandatory application of laws for the carriage of goods by sea pertains to the extraterritorial effect of domestic laws and falls within the scope of national legislative jurisdiction and is in line with the legitimacy and rationality requirements for the exercise of legislative jurisdiction by the state. At the same time,the mandatory application of Chapter Ⅳ of the Chinese Maritime Code will neither affect the trend of multilateralism in the legislation of private international law,nor be detrimental to the unity of laws for the carriage of goods by sea. Although the relevant provisions on reservation of public order seem to provide a solution for the mandatory application of Chapter Ⅳ of the Chinese Maritime Code,due to the large discretionary space of judges and China not being a precedent-based country,Chinese courts have not formed a unified judicial opinion on whether to apply Chapter Ⅳ of the Chinese Maritime Code in handling contracts of carriage of goods by sea to or from ports of China in foreign trade based on the relevant provisions of reservation of public order. Moreover,judg-ments of the negative value of the application of foreign law involved in the reservation of public order may give rise to adverse consequences such as the aversion of other states. Therefore,the mandatory application of Chapter Ⅳ of the Chinese Maritime Code should be explicitly stipulated in the amendment of the Chinese Maritime Code. Both the unilateral conflict rule approach adopted in the Chinese Maritime Code (Revised Draft for Comments ) and the"di-rectly applicable laws"approach adopted in the Chinese Maritime Code (Revised Draft for Review ) can realize this goal. Considering that the"directly applicable laws"has the advantage of both protecting the public interest of the forum and respecting the autonomy of the parties compared with the unilateral conflict rule,stipulating"Chapter Ⅳ of the Chinese Maritime Code shall apply"by unilateral conflict rule goes beyond the functional scope of unilateral conflict rule as a jurisdiction-choice norm,and other countries such as the United Kingdom and United States have made their own laws for the carriage of goods by sea compulsory through the"directly applicable laws",it is recom-mended that the"directly applicable laws"approach be adopted to stipulate the mandatory application of Chapter Ⅳ of the Chinese Maritime Code. In addition,the"directly applicable laws"approach makes it possible for foreign courts which recognize foreign"directly applicable laws"to apply Chapter Ⅳ of the Chinese Maritime Code to hear disputes related to contracts of carriage of goods by sea to or from ports of China.
contracts of carriage of goods by seamandatory provisionsmandatory applicationunilateral conflict rule"directly applicable laws"
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