Research On Agreed Jurisdiction In International Civil And Commercial Proceedings

All along, private international law scholars are more concerned about the international civil and commercial litigation problems related to the application of the law. In fact, the international civil and commercial litigation practice, the determination of the international jurisdiction of civil and commercial cases is equally important. In the international private law, the applicable law and the jurisdiction of an international civil and commercial case are not identical, but differentiated. The situation is different from the criminal law. The jurisdiction of international civil and commercial cases is the premise of the court accepting international civil and commercial cases. In the lawsuit, the resolve of the jurisdiction of international civil and commercial cases is first. And then the applicable law is closed to define the rights, obligations or responsibilities. Jurisdiction of the proceedings as the first step impact the judgment directly and the recognition and enforcement of the foreign judgments. Therefore, the theoretical status of the international jurisdiction in civil and commercial proceedings should not be ignored.Along with autonomy in private law spirit developing and permeating in the international civil and commercial proceedings, in the theory system of jurisdiction in international civil and commercial proceedings, the agreed jurisdiction is on the rise. It indicated its broad applicable scope and the broad prospects for development. This article studied agreed jurisdiction from the positive and historical angles. And it tries to clarify the clue of the developing of the jurisdiction, and find the"proper law"of jurisdiction. This will give a good idea for solving the conflict of jurisdiction.The first chapter has consciously highlighted theory status of the international civil and commercial proceedings jurisdiction in the private international law, and analysis the reason of being neglected about jurisdiction to prepare a premise for understanding the theory of agreed jurisdiction. In the beginning of this chapter, it starts from defining the concept of the jurisdiction, as the beginning of studying on the theory of agreed jurisdiction system. Next, through clarifies related questions in the relation of theories of agreed jurisdiction and the applicable law,we must understand a question that conflict law do not belong the area of the applicable law only, but also the area of choosing the jurisdiction. The correct manner should be further differentiating the conflict the legislation jurisdiction and judicial jurisdiction. Third, the international society often deals with the issues of international civil and commercial proceedings jurisdiction as a supplementary of some treaties concerning recognition and enforcement of the foreign judgments. And the special treaties about jurisdiction are few. This imperceptibly reduced the status of jurisdiction. But in fact, when the foreign (or outside territory) court determines the effectiveness of the other foreign jurisdiction, it must examine whether the foreign court has the right judicial jurisdiction to the case.Chapter II of the article explores some problems of agreed jurisdiction. Agreed jurisdiction is the base of solving the conflict of jurisdiction in the international civil and commercial cases. In essence, this is the principle of autonomy system in the private international proceedings between international roles in the area of performance. This article has analyzed the independence of the jurisdictional agreement, further ,"the division theory"should be used to solve the applicable law of the jurisdictional agreement.Chapter III reviews the conflict of jurisdiction coordination of the relevant international conventions. One of the methods to solve the conflict is coordination, avoiding the conflict is the other one. In order to avoid the various rules on the same question among countries, the best mean is to sign the convention, and then various member nations should coordinate their domestic laws. The cooperation manner should be adopted to concern the attitude of the opposite party court in order to make the agreement effective as far as possible. That has comprehensively stipulated the jurisdiction of international civil and commercial proceedings is a very small number, but the international unification rules related jurisdiction always applies in the international society, and unceasingly are developing in the legislation, the newest achievement is the 2005 Hague Convention on Choice of Court Agreements, this joint pledge is the establishment achieves above a foundation, namely based on the autonomy of will principle. The 2005 Hague Convention on Choice of Court Agreements adopted a resolution on the pattern of international jurisdiction. This will provide a strong theoretical support of legislation, and has produced a substantial, certain impact to the practice. Meanwhile, the author has a brief review of the legislative history of the international agreement on jurisdiction. Advantages and limitations of the international legislation are briefly reviewed. Because the determination of jurisdiction is also an option, the concepts, principles, rules and methods of the choice of applicable law provide a draw, especially the"proper law theory"presented by the British scholars to determine the applicable law in the early 19th century.Chapter IV of this paper straightens out the appropriate-method process of the coordination of jurisdiction. The author means to find the spirit of"proper law theory"in the process to coordinate the conflicts in jurisdiction combing the"Convention on Choice of Court Agreements"Appropriate Idea"has been implemented and contained in determining the jurisdiction of civil and commercial litigation process as a general concept of choice. Finally, the author analyses the"proper law"to coordinate jurisdiction at the end of the paper in order to determine the most appropriate point to the determination of jurisdiction. The law is a tool for balancing the conflict of interests. Whether the law or a legal system is perfect, we should see whether it is consistent with the requirements of the times, and interests of the parties adjusted by it have achieved a balance. It appears that regulations of our country on agreed jurisdiction seem to be conservative and delay. So we need to further supplement and improve the regulations to meet the need of unifying international jurisdiction showed in the"convention on Choice of Court Agreements". If we want to respect for party autonomy, we should reduce the unnecessary restrictions as much as possible. The author do hopes that this paper will benefit the research on relevant legislation.