Party Autonomy in Consumer Choice of Law Rules in China
摘要
This chapter examines the application of consumer choice of law rules under Article 42 of the Chinese Conflict of Laws Act, which limits the governing law for consumer contracts to two connecting factors: the consumer’s habitual residence or the place where goods or services are provided. If the two factors lead to only one country, the consumers would have no choice and the fulfillment of targeting test becomes irrelevant, since the same law always applies. These rigid rules in terms of the exercise of party autonomy can lead to the application of laws that may not have a substantial connection to the case. The unilateral party autonomy granted to consumers aims to protect them as weaker parties but may not adequately address complex cross-border disputes. It also highlights the lack of interaction between consumer-specific rules in Article 42 and the general contract choice of law rules in Article 41, arguing that applying general rules might better suit cases where the place of provision doesn’t have the closest connection. This chapter argues that introducing bilateral party autonomy, where both consumers and businesses can choose the applicable law, could better align with the expectations of both parties. Additionally, distinguishing between mandatory and overriding mandatory provisions is essential for consumer protection, as currently, provisions protecting consumers are not fully integrated into the conflicts regime. Both mandatory and overriding mandatory provisions could play a role in consumer protection with different applicable conditions. To this end, Article 8(1) of the SPC Judicial Interpretation of the Chinese Conflict of Laws Act can be revised slightly as “where protection of the rights and interests of workers or consumers is involved”. This would cover consumer disputes over provision of goods or services, while public interests may also be involved.