The Easier Way to Have 'Better Law'?: The Most-Significant-Relationship Doctrine As the Fallback Conflict-of-Law Rule in the People’s Republic of China

Abstract

Examining statutory law and its application in the People’s Republic of China, this article questions the idea that standards are the easier way for a jurisdiction to have “better law,” and cautions against the questionable exercise of official discretion, ostensibly authorized by law in the form of a standard. The PRC’s conflict-of-law statute came into effect in 2011. Article 2, Section 2 sets the most-significant-relationship doctrine as the fallback rule for the entire choice-of-law field. In other words, when no other choice-of-law rule is applicable in a particular case, a people’s court of the PRC will apply the law of the place that the PRC court deems to have the most significant relationship with the immediate case. Some scholars have considered Article 2, Section 2 an important innovation. However, as demonstrated by this Article, since Article 2, Section 2 took effect in 2011, it has been applied in a questionable manner. Drawing on the rule-versus-standard literature, this article cautions against the questionable exercise of official discretion, ostensibly authorized by law in the form of a standard.