Abstract
Macau is a jurisdiction of civil law tradition. Although the application of conflict of laws rules is theoretically mandatory, it has been difficult to find a case where a foreign law has been actually applied, either because of lex fori favouritism or some other reasons, since Macau established its own conflict of laws system in December 1999. In Macau, foreign law has a hybrid nature and it is considered as something between “law” and “fact” but more is the former and less is the latter; both the judicial authority and the parties may have the burden to prove the content of foreign law. Although there are many ways to ascertain a foreign law, given the convenience of our digital era, it is submitted that inter-governmental cooperation by online would be the most desirable way to resolve the problem of access to foreign law.
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Notes
- 1.
There is another SAR established on 1 July 1997 within China, namely Hong Kong, which has a very similar political status to and enjoys the same degree of autonomy as Macau under the policy of “One Country, Two Systems” advocated by the late leader, Deng Xiaoping.
- 2.
These figures were released by the Statistics & Census Bureau of Macau and they can be found at http://www.dsec.gov.mo/Statistic.aspx?NodeGUID=58449a77-0f33-432f-918f-df2af8b4ea67 and http://www.dsec.gov.mo/Statistic.aspx?NodeGuid=7bb8808e-8fd3-4d6b-904a-34fe4b302883 (last visited 10 October 2013).
- 3.
The Macau Basic Law can be found at http://bo.io.gov.mo/bo/i/1999/leibasica/index_uk.asp (last visited 10 October 2013).
- 4.
See Arts 16, 17 and 19 of the Macau Basic Law.
- 5.
The power of the SAR is much broader than that of a province in China and it is also the author’s view that the autonomy enjoyed by the SAR is more than that of a state in a federal country such as in the United States of America (USA), see Chapter Two of the Macau Basic Law.
- 6.
“The laws previously applicable in Macau will basically remain unchanged [after the handover]…”. see Arts 8 and 18 of the Macau Basic Law. Hereinafter, the term “country” is, of course, used in the sense of PIL in this paper.
- 7.
Macau has gone through 4 distinct periods for its legal history including its PIL history: a period of mixed Chinese-Portuguese jurisdiction (1557–1849), a colonial period (1849–1974), a transitional period (1974–1999) and the period currently as a SAR within China, generally see Guangjian Tu, Private International Law in Macau, Beijing, China Social Science Academic Press, 2013, pp. 44–50.
- 8.
Macau Civil Code came into force on 1 October 1999. The choice of law rules are detailed in Chapter III, Title I of Book 1. This law can be found at http://bo.io.gov.mo/bo/i/99/31/codcivpt/default.asp (visited 10 October 2013). All the laws of Macau mentioned in this paper can be found at this website; it will not be quoted again. The laws in Macau usually only have Portuguese and Chinese versions unless indicated otherwise in this report. While the Macau Civil Code has partially been translated into English, choice of law rules have been left almost untouched. For the partial translation of the Macau Civil Code, see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1280595 (visited 10 October 2013).
- 9.
See Gaolong Liu & Guoqiang Zhao, New Commentaries on Macau Laws, Macau, Macau Foundation, 2005, pp. 7–9, 18–21.
- 10.
See Xiaoqin Tang, Macau Contract Law, Netherlands, Kluwer Law International, 2009, p 21.
- 11.
See Guangjian Tu, “the Conflict of Laws System in Macau” (2010) 40 Hong Kong Law Journal p. 85.
- 12.
See Tu, supra note 7, 168–69; Jin Huang & Huacheng Guo, General Part of Macau Private International Law, Macau, Macau Foundation, 1996, p. 86.
- 13.
See Article 341 of Macau Civil Code (Customary Law or Law outside the territory of Macau), which says:
-
1.
A party who invokes a customary law or a law outside the territory of Macau shall prove the existence and content of that law. The court, however, shall also ascertain that law ex officio.
-
2.
If a court must decide the case according to a customary law or a foreign law, the court shall also ascertain that law ex officio where both of the parties did not invoke that law or even where no objection is raised to the invocation of that law.
-
3.
Failing to determine the contents of the applicable law, the court shall resort to the general principles of Macau law.
-
1.
- 14.
Ibid.
- 15.
See Paragraph 1, Article 22 of Macau Civil Code (Interpretation and Ascertainment of the Applicable law), which says:
The applicable law shall be interpreted in the same way as how it should have been done in the jurisdiction to which it belongs.
- 16.
See Tu, supra note 7, p. 169.
- 17.
See Article 341; Paragraph 2, Article 22 of Macau Civil Code (Interpretation and Ascertainment of the Applicable Law), which says:
Where it is impossible to ascertain the content of the applicable law, the supplementary alternative applicable law shall be applied…
- 18.
See Article 639 of Macau Civil Procedure Code (the Basis for Appeal), which says:
Violation or misapplication of any substantive or procedural law … can be appealed to the Court of Final Appeal …
- 19.
Ibid; Huang & Guo, supra note 12 at 90.
- 20.
Normally, there are 3 different versions of the provided legal instruments on this website i.e. Chinese version http://cn.io.gov.mo/; English version http://en.io.gov.mo/; and Portuguese version http://pt.io.gov.mo/
- 21.
This Arrangement was singed on 15 August 2001 and came into force on 15 September 2001. For a Chinese version, see http://bo.io.gov.mo/bo/ii/2001/35/aviso39_cn.asp (last visited on 17 October 2013); for a Portuguese version, see http://bo.io.gov.mo/bo/ii/2001/35/aviso39.asp (last visited on 17 October 2013).
- 22.
This Agreement was signed on 21 November 2008. For a Chinese version, see http://bo.io.gov.mo/bo/i/2008/50/aviso31_cn.asp (last visited on 17 October 2013); for a Portuguese version, see http://bo.io.gov.mo/bo/i/2008/50/aviso31.asp#31(last visited on 17 October 2013).
- 23.
This Agreement was signed on 17 January 2001. For a Chinese version, see http://bo.io.gov.mo/bo/ii/2001/06/aviso10_cn.asp (last visited on 17 October 2013); for a Portuguese version, see http://bo.io.gov.mo/bo/ii/2001/35/aviso39.asp (last visited on 17 October 2013).
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Tu, G. (2017). Macau: Proof and Information About Foreign Law in Macau. In: Nishitani, Y. (eds) Treatment of Foreign Law - Dynamics towards Convergence?. Ius Comparatum - Global Studies in Comparative Law, vol 26. Springer, Cham. https://doi.org/10.1007/978-3-319-56574-3_26
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