| The provisions on the types of agency, the objects of connection and the connecting factors in the Law on Choice of Law for Foreign-related Civil Relationships are all ambiguous and need to be redefined from the academic perspective. The "agency" in Art. 16.1 should not be interpreted directly in accordance with the civil law, but should, on the basis of the theory of functional qualification and teleological qualification, autonomously be interpreted as excluding statutory representation and representation by company organs, and only referring to voluntary agency. The doctrine and structure of the substantive law of agency affect the construction of conflicts rules for agency. Considering both reasons from the substantive law and the conflict of laws, Chinese legislature should adopt the German theory of "independent determination of applicable law for authority", rather than transplant the rules from English conflict of laws and the Hague Convention on the Law Applicable to Agency. In adopting the German theory, China should make it clear that conflict rules applicable to a contract between a principal and an agent or a contract with a third party can be found outside Art. 16 and that authority is the only object of connection in Art. 16. The "agency" in Art. 16.1 should be interpreted more restrictively as authority, and the proviso in this paragraph should be removed in future revision of the law. When subjective and objective connecting factors are employed to decide the applicable law, elaborate balance of interests should be made in light of different types of substantive law, so as to concretize the employment of connecting factors. |
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