The Application of Private Air Law Conventions in China's Courts
Published 4 August 2021
The Warsaw Convention and the Montreal Convention have established the legal order in private international air law. Their direct application in domestic courts is determined by the mandatory nature of the text of the Warsaw Convention and the Montreal Convention. The application of those conventions paves the way for maintaining uniform international air law order. However, such legal order is undercut by certain rulings from China's domestic courts. Instead of directly applying the private air law conventions, those courts take a detour and find justification under the Law of the People's Republic of China on Choice of Law for Foreign-related Civil Relationships, such as under conflict of laws or party autonomy. The wrongful application of those conventions may be detrimental to the protection of private interests and judicial certainty. This article, therefore, argues that China shall seek uniform application of private air law conventions in domestic courts. The article applies an empirical method by first presenting the empirical data, particularly leading cases from the Supreme People's Court to lower district courts. Then, it identifies patterns of application in China's courts and finally assesses critically the correct pathways for future application, especially against the backdrop of the post-Civil Code era.
This paper will be part of the TDM Special Issue on "Old and New Disputes in Aerospace Law". More information here www.transnational-dispute-management.com/news.asp?key=1858