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Title: Party autonomy and choice of law in movable property rights
Author: Xu, Lu
Awarding Body: University of Leeds
Current Institution: University of Leeds
Date of Award: 2019
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The thesis explores the principle of party autonomy in choice of law and its application in cross-border disputes concerning movable property. The central argument is simple. An expansive application of party autonomy in disputes concerning movable property should be favoured, while the traditional rule of lex situs remains a secondary rule. In doing so, it at first conducts a theoretical study of the development of choice of law theories in the search for theoretical foundations of party autonomy. It is demonstrated that party autonomy has not been addressed properly and introduced a new approach to accommodate party autonomy as a foundational choice of law principle. Then it adopts a comparative study to evaluate the two different choice of law approaches adopted in the UK and China addressing movable property rights. Four sub-sections contributed to this part of discussion, including the critical examination of the application of the lex situs rule in respect of tangible movables in the UK; the application of party autonomy in China concerning tangible movables and an evaluation of its effectiveness; the relevance of the situs of a debt in an assignment in the UK. It concludes that the rule of lex situs is far from perfect and faces serious challenges especially in the borderline case of assignment. It thus proposes a rights-based approach embodied party autonomy to address comprehensively the choice of law issues for assignment of debts and examines two examples of the EU and China where a similar approach is partially adopted. Finally, it revisits the relevance of designing choice of law rules based on the contract/property divide and concludes that the purposes for which party autonomy is conceived in private international law do not conflict with the essential values of property rights and proposes a general framework under which party autonomy is exercised with reasonable restrictions.
Supervisor: McCormack, Gerard ; Brown, Sarah Sponsor: University of Leeds ; China Scholarship Council
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available