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A Study On The Hague Convention On Choice Of Court Agreements Of 2005

Posted on:2009-12-29Degree:DoctorType:Dissertation
Country:ChinaCandidate:J W WangFull Text:PDF
GTID:1116360272488778Subject:International Law
Abstract/Summary:PDF Full Text Request
The Hague Convention on Choice of Court Agreements of 2005 (hereinafter the Convention) is genuinely the first worldwide convention on recognition and enforcement of judgments. In comparison with the originally ambitious project-a comprehensive global convention on jurisdiction and recognition and enforcement of foreign judgments in civil and commercial matters, the Convention is downsized radically into a stand-alone convention on choice of court agreements which becomes the only one of grounds of jurisdiction. However, the Convention is actually a valuable product of considerable quality-validating party autonomy, facilitating the free movement of judgments, and promoting international business transactions smoothly.Because of the growing development of the international civil and commercial business transactions, the necessity will appear gradually for China for a worldwide convention on recognition and enforcement of judgments. However, to analyze whether China will ratify the Hague Convention, it is necessary to explore the issues of the Convention completely and thoroughly, and to examine whether there are substantial conflicts between the Convention and Chinese law, and if there are methods or safeguards to solve the conflicts.The dissertation is composed of three parts which are Preface, Text and Concluding Remarks, and the Text is composed of four chapters.Entitled "An Introduction to Choice of Court Agreements System", Chapter I discusses the choice of court agreements system briefly. It states its history and development of the system in the world which help to affirm that the system has been adopted by almost all countries of the world. Then it analyzes its two important theoretical bases of the system which are the Party Autonomy Principle, and Fairness Theory of adjudicatory jurisdiction.Entitled "The Main Things of the Convention", Chapter II discusses the Convention's primary issues. At first, it states the concluding process of the Convention to find out some important issues which affect negotiation of the Convention. Then, it introduces briefly its basic structure and procedural issues of the Convention. Finally, it lays stress on the scope of application of the Convention which is concerned with substantive scope, geographic scope and time scope. Because of the scope of application of the Convention concerning its scope of validity of the Convention, the discussion about it is helpful to applying for the Convention properly and to providing prerequisite of feasibility on whether China can ratify the Convention. It is permitted that the discussion of the Convention's primary issues is of advantage to comprehending the Convention comprehensively.Entitled "The Core Things of the Convention", Chapter III analyzes the main issues of the Convention comprehensively. It involves three "key provisions" of the Convention. First, the chosen court must hear the case when proceedings are brought before it; secondly, any other court not chosen before which proceedings are brought must refuse to hear them; and thirdly, the judgment of the chosen court must be recognized and enforced in other contracting states. The three "key provisions" incorporate contracting states' basic obligations, while at the same time, the Convention provides broad range of exclusions for the above contracting states' basic obligations. The basic obligations of the Convention are fundamental to whether or not the Convention's aim can be realized, and they are key to whether or not the contracting states can perform their duties and apply the Convention accurately. And thus, it is necessary to discuss the above basic obligations and exclusions of the Convention comprehensively and thoroughly. This Chapter analyses emphatically the three obligations of the Convention and respective exclusions.Entitled "The Feasibility of Ratification of the Convention for China", Chapter IV explores the feasibility of whether China will or can ratify the Convention. It is proceeded from three points of view. The first is the compatibility between the Convention and the Chinese law. It states that although there are some differences between the Convention and Chinese law, they can be eliminated through making use of some flexible mechanisms stipulated by the Convention, or amending the Chinese law in order to cancel the rules which are conflicted with tendency of social or economic development of the China. The second is potential factors affecting Chinese ratification of the Convention: effects on Chinese international arbitration which may be happened since the Convention's hope is that the Convention will do for choice of court agreements what the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards(1958) has done for arbitration agreements, and thus there may be negative effects on Chinese international arbitration when the Convention goes into effect, and effects on Chinese interests because of "international transfer of cases" which may be taken place for parties may prefer choosing some developed countries' court(s) to Chinese court when China ratifies the Convention. These factors have actually negative effects on Chinese ratification of the Convention, however, they are not the reasons of refusing to ratify the Convention for China, because the negative effects cannot be eliminated if the Convention comes into effect, and irrespective of that whether or not China ratify it. The third point of view is necessity of Chinese ratification of the Convention. It is necessary for China to ratify the Convention. In sum, it is feasible for Chinese ratification of the Convention.
Keywords/Search Tags:Choice of Court Agreements, Recognition and Enforcement of Judgments, The Hague Convention on Choice of Court Agreements
PDF Full Text Request
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