Party Autonomy in Chinese Courts: With Special References to the Archangelos Gabriel Salvage Case

Abstract

From the perspective of ‘Archangelos Gabriel’ salvage case, this article probes into the application of party autonomy by Chinese courts in cases with foreign elements. The case, finally decided by the SPC, shows many judicial innovations and draw great concerns in both the Chinese judicial community and academia. However, it also shows a common judicial phenomenon that the improper timing of choice by parties and wrong choice-of-law rule invoked by the courts lead to the uncertainty of the applicable law and the judges could not deal with the implied choice cases properly. This gives rise to an urgent choice-of-law problem that the principle of party autonomy just empowers parties to choose the state of applicable law but not a particular law of a state. It is inconsistent with the nature of party autonomy and may further turn the party autonomy to a rule with the same nature of “choice of jurisdiction.”