The Intervention Path of Fundamental Rights under the Scope of International Private Law

HE Yehua

Abstract: In recent years, international private law scholars have argued for the radiating effect of fundamental rights on international private law by introducing constitutional theory. However, there remains a lack of systematic research on how fundamental rights should be integrated into judicial practices concerning foreign-related civil and commercial cases. Throughout the development of international private law, public policy has served as a historical carrier of substantive values for judicial entities and has consistently played a crucial role in value review. In cases of international private law where conflicts arise with the values of fundamental rights, public policy indirectly excludes the legal choice outcomes to safeguard the human rights values inherent in fundamental rights from infringement. However, due to limitations imposed by the degree of connection and relative conditions, traditional paths of public policy have certain constraints and cannot provide comprehensive protection for fundamental rights. Therefore, there is a need for judges to shift their logical paradigms, transcend bilateral choice-of-law models, and introduce a direct intervention path for fundamental rights. This direct intervention path utilizes the logical analysis framework of the protection scope, intervention, and justification of fundamental rights. It can effectively balance conflicting legal interests and maximize the protection of the fundamental rights of the parties involved.

Keywords: fundamental rights · intervention path · public policy · analysis framework