ABSTRACT
Although China’s One Belt One Road (OBOR) initiative is an economic value creator for the nations involved, the interaction of diverse legal, political, economic, cultural, and religious systems in the countries along the OBOR, means that conflict of law scenarios seem inevitable. The problem is compounded by the fact that few major sub-regions falling within the geography of this initiative have not acceded to international harmonisation efforts. The correct choice and application of the relevant law and the provision of judicial services, therefore, become roadblocks in building the OBOR. The Supreme People’s Court guidance (No.9 [2015]) expressly favoured the application of international treaties and State Practice and the mandatory rules of the forum. Exemplifying through the Sinochem (2013) decision, the guidance reiterated the primacy of party autonomy, priority principle of international treaties, the direct application of mandatory rules, sourced not only in public law, such as criminal, administrative, and economic law, but also in the civil and commercial sphere, and the rule related to the choice of law founded in the principle of the closest connection. Indian law on the choice of law rule seems similar to this guidance – Indian courts have, as recent as the Enercon GmBH (2014) decision, reiterated this principle of closest connection for ascertaining the applicable law and also insisted upon the courts/tribunals to adopt the trial function method in ascertaining the content of foreign law, unless the party itself has provided such foreign law. This chapter attempts to critique the guidance of the Supreme People’s Court and their similarity with the law in India, especially because India is not a signatory to the harmonised law on international sales of goods, the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) (CISG) and there have on previous occasions been difficulties in the reconciliation of the differences with the applicable law founded in civil law-based legal systems.
