| With a rapid and increasing expansion of civil communication and commercial transaction between Mainland and Hongkong after the Return of Hongkong, cases involving Mainland and Hongkong become common. Accordingly, more and more attention is paid into conflict of laws between Mainland and Hongkong. However, a number of theoretical and practical legal problems arising in this field still have to be thoroughly analyzed and subsequently solved. Since it affects application law, result of litigation as well as recognition and enforcement of judgment, jurisdiction plays an important role in civil litigation. The present dissertation focuses on an analysis of conflict of jurisdiction on civil and commercial matters between Mainland and Hongkong. Relying on prevailing research materials, this study intends to make an in-depth and systematic research of pertinent problems arising from conflict of jurisdiction on civil and commercial matters between Mainland and Hongkong. The study starts with the nature of internal conflict of jurisdiction on civil and commercial, pays attention to character and remedies for conflict of jurisdiction while comparative analysis, case analysis and law analysis underlies its construction. It is my hope as the author that this study may make a valid contribution to both improvement of jurisdiction in Civil Procedure Law of Mainland and solution of conflict of jurisdiction on civil and commercial matters between Mainland and Hongkong. The dissertation comprises 4 Parts 11 Chapters, in addition to an Introduction and Conclusion, totaling over 220,000 words.Part I puts forward the issue as the conflict of jurisdiction on civil and commercial matters between Mainland and Hongkong, laying the foundation for a better understanding of the issues. This part starts with a definition and character of the terms"internal conflict of jurisdiction on civil and commercial matters"in order to fully grasp of essence of this issue. This Part comprises 2 chapters.Chapter 1 divides internal conflict of jurisdiction into internal conflict, civil and commercial matters'jurisdiction and judicial jurisdiction in nature .Therefore, the following factors should be considered when striving to provide thorough remedies: particularity and equality of different legal systems, sovereignty, different meaning of civil and commercial matters, a flexible way to pursue a uniform definition of civil and commercial matters, particularity of conflicts of judicial jurisdiction, cooperation and assistance of different legal systems as well.Chapter 2 introduces emergence and character of conflict of jurisdiction on civil and commercial matters between Mainland and Hongong. This chapter points out the reason of jurisdictional conflicts is equal coexistence of two law districts, internal civil communication and commercial transaction, and different jurisdiction rules, including such forms as positive conflict and negative conflict, dominant conflict and recessive conflict, reactive suits and repetitive suits in practice. Since it results in a series of negative effect, it is necessary to solve the internal jurisdictional conflict. In addition to concrete situation, general and unique character with lacking of common authority, all-round conflict and complex nature, this chapter also pays attention to cooperation and negotiation between two law districts in the context of following principles: one country two systems, equality of two law districts, promotion of internal civil communication and commercial transaction, predictability of Mainland'law and judicial discretion of Hongkong'common law.Part II discusses the special jurisdictional conflicts on civil and commercial matters between Mainland and Hongkong. This part explores possible fields and concludes character of conflict of jurisdiction with different nature, as well as compares differences of remedies for jurisdictional conflict between Mainland and Hongkong, therewith laying a foundation for approaching to proper remedies for jurisdictional conflict. This part is divided into two chapters.Chapter 3 focuses on possible fields of jurisdictional conflicts including territorial jurisdiction, special jurisdiction and extra-territorial jurisdiction, jurisdiction by agreement, exclusive jurisdiction and jurisdiction by submission of defendant. This chapter proposes various remedies for different types of jurisdictional conflicts. A choice of court agreement may apply to any conflicts in connect with territorial jurisdiction as well as conflicts between special jurisdiction and extra-territorial jurisdiction. Meanwhile, a uniform scope and priority of exclusion jurisdiction may apply to any conflicts between exclusive jurisdiction of Mainland'court and any other types jurisdiction of Hongkong'court. A uniform condition, nature and effect of non-exclusive and exclusive jurisdiction clause may apply to any conflicts between jurisdiction by agreement. Finally, a consensus on sequence of effect between jurisdiction by submission of defendant and any other types of jurisdiction may apply to any conflict in connection with jurisdiction by submission of defendant.Chapter 4 argues about difference of remedies for jurisdictional conflict on civil and commercial matters between Mainland and Hongkong in law and court'practice. By reference to possible differences of orientation, conditions, considering factors and result of Forum Non Conveniens, this chapter puts forward a uniform condition is favor for adopting Forum Non Conveniens as a remedy for jurisdictional conflict in future. Furthermore, after examining particular approaches: First-Seised Court in Mainland'court practice and Antisuit Injunction in Hongkong'court practice, this chapter suggests a feasibility analysis may be applied before adopting such particular approaches as remedy for jurisdictional conflict.Part III uses modes of jurisdictional conflict on civil and commercial matters in the world for reference. It mainly focuses on feasibility of current modes used for reference after analyzing the character of different modes of jurisdictional conflict. This part consists of three chapters.Chapter 5 examines modes of jurisdictional conflict in the country with non-unified legal system, mainly focuses on United State and UK. This chapter concludes characters of mode in United State as follows: regarding internal conflict as international conflict, identifying different types of jurisdictional conflicts, various uniform legislation of jurisdiction and remedies for jurisdictional conflict. On the other side, characters of mode in UK is as follows: the allocation of jurisdiction within the United Kingdom according to international convention and internal uniform law; resolving conflict of jurisdiction in non-international cases according to respective law of each law district. Finally, this chapter discusses the feasibility of mode of UK or United State used for reference and suggests differences shall be taken into account when regarding intersectional conflict as international conflict, and it needs to constitute remedies for jurisdictional conflict before making a uniform law.Chapter 6 explores modes of jurisdictional conflict in the international convention, especially in the Brussels Regulation adopted by the Council of the European Union and the Preliminary Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters adopted by the Special Commission of the Hague Conference on Private International Law in 1999. This chapter concludes characters of mode of Brussels Regulation as follows: internal regulation on jurisdiction and internal harmonizing institution; uniform jurisdiction rules coexisting with remedies for jurisdictional conflict, strengthening and derogating effect of remedies for jurisdictional conflict on recognition and enforcement of judgment. This chapter also concludes characters of mode of Draft Hague Convention as follows: lacking of super-national interpreting institution in the context of a global mixed and double convention, uniform jurisdiction rules coexisting with remedies for jurisdictional conflict, strengthening effect of remedies for jurisdictional conflict on recognition and enforcement of judgments. Finally, this chapter concludes the experience used for reference as follows: double convention as a better mode in resolving conflict of jurisdiction; advantage and disadvantage of mixed or strict double convention; coexistence of uniform jurisdiction rules and remedies for jurisdictional conflict, proper remedies for jurisdictional conflict.Chapter 7 elaborates mode of jurisdictional conflict on civil and commercial matters between Mainland and Hongkong. This chapter points out that arrangement mode is the best mode under current circumstance by analyzing the validity, feasibility and difficulties of conventional mode, uniform law mode, constitutional mode and model law mode. This chapter tends to suggest that conflict of jurisdiction shall be resolved step by step under an arrangement mode, pushing from a single arrangement to a double arrangement, setting up uniform remedies first and unifying jurisdiction rules if possible..Part IV conceives the remedies for jurisdictional conflict on civil and commercial matters between Mainland and Hongkong. Within arrangement mode, up to four remedies for jurisdictional conflict may be available: (1)priority of exclusive jurisdiction which may apply to resolve conflicts between exclusive jurisdiction and any other types of jurisdiction;(2) priority of jurisdiction by agreement which relies on the parties'consensus may apply to resolve conflicts between non-exclusive jurisdiction; (3) First-seised Court which may apply to resolve conflicts between exclusive jurisdiction and between non-exclusive jurisdiction except exclusive agreement on choice of court; (4) Forum Non Conveniens as an exception may apply to resolve other types jurisdictional conflicts except exclusive jurisdiction and exclusive agreement on choice of court. This part comprises four chapters.Chapter 8 outlines the priority of exclusive jurisdiction by discussing the role of exclusive jurisdiction as a remedy for conflict of jurisdiction, analyzing related rules in international convention and reviewing national academic suggestions. This chapter emphasizes the key of priority of exclusive jurisdiction applied to resolve conflict of jurisdiction is recognition of its scope and effect by Hongkong'court,. This chapter conceives special rules of priority of exclusive jurisdiction basing on restriction of scope and acknowledge of priority of exclusive jurisdiction.Chapter 9 advances priority of jurisdiction by agreement. Basing on analyzing feasibility of adopting a choice of court agreement as a remedy for conflict of jurisdiction, reviewing related rules in international convention and analyzing national academic suggestions, this chapter considers the key of adopting such remedy is decreasing non-necessary restrictions of a choice of court agreement and a consensus on priority of jurisdiction by agreement between Mainland and Hongkong. This chapter turns to work out special rules of priority of jurisdiction by agreement.Chapter 10 designs First-seised Court. Basing on a feasibility analysis of adopting First-seised Court as a remedy for conflict of jurisdiction, reviewing related rules in international convention and analyzing national lawmaking suggestion, this chapter points out the key of adopting such remedy is to constitute absolute First-seised Court, define its condition and strengthen its effect on recognition and enforcement of judgment if Hongkong'court adoptes such remedy for jurisdictional conflict. Finally, this chapter designs special rules of First-seised Court.Chapter 11 constructs Forum Non Conveniens. Basing on an analysis of necessity and feasibility of adopting Forum Non Conveniens as a remedy for jurisdictional conflict, this chapter suggests that Forum Non Conveniens may be adopted as an exception to First-seised Court. By reviewing the related rules of international convention and analyzing national lawmaking suggestions, this chapter puts forward the key of adopting Forum Non Conveniens as a remedy for jurisdictional conflict is its validity affirmed by Mainland'court and uniform conditions adopted by two law districts. Finally, this chapter designs the special rules of Forum Non Conveniens.By tracing the whole paper and synthesizing contents of four remedies, the conclusion puts forward a transitional method that makes an amendment to Civil Procedure Law of Mainland including improving related jurisdiction rules and constituting remedies for jurisdictional conflict before a consensus is arrived between Mainland and Hongkong. Furthermore, this study points out that resolving conflict of jurisdiction not only relies on a series of remedies, but also relies on confirmation on effect of such remedies during recognition and enforcement judgment.
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