Author: Lin Qiang
Abstract: The principle that procedural issues are governed by lex fori”(hereinafter referred to as the lex-fori principle) is regarded as a basic principle for the choice of law in procedural issues. Its legitimacy is supported by the fact that it meets the requirement of judicial efficiency and that it cannot be replaced by the closest connection principle. Nevertheless, procedural issues and substantial issues should be defined by the legislator in order to prevent manipulated characterization.When we embrace the “dichotomism of substance and procedure”, it means that the organic relationship formulated for certain functions or purposes between substantial rules and procedural rules will be disturbed unavoidably. In light of the defects in the lex-fori principle, two categories of exceptions should be developed for it. The first category of exceptions allow judges to apply certain procedural rules in the lex causae of substantial issues when there are legitimate procedural rights or interests to apply foreign procedural law, so as to realize the objectives of “correct application of law” and “protection of lawful rights and interests of the parties” stipulated in Art. 2 of Civil Procedure Law of the People’s Republic of China. The second category of the exceptions, which result from the recession of “state-centralism”, allow the formulation of procedural bilateral conflict rules when there are legitimate procedural rights or interests to apply foreign procedural law. Besides, in pursuit of just result in the application of law in procedural issues and in order to achieve the objectives of certain procedural institutions, it’s necessary for judges to realize that they should resolve preliminary matters and adjustment matters in consideration of the purposes of specific procedural rules properly. And it means that the procedural rules for domestic litigations should be applied with modifications when necessity.
Key Words: procedural issues, substantial issues, the lex-fori principle, lex fori, bilateral conflict rules
Author: Lin Qiang, an assistant research fellow at CASS Institute of International Law;
Source: 8 (2023) Law Science.
