The Parties Choose To Study The Court

In international civil and commercial litigations, the parties are entitled to choose forum by themselves. Agreement jurisdiction has been accepted as a world-wide recognized principle in the modern international civil procedure. But in China, the present legal rules impose too much unreasonable restrictions on Agreement jurisdiction.The thesis makes a comparative analysis on international conventions and legislations in different countries. Through reviewing and comparing the Agreement jurisdiction of the western two law system, the thesis indicates the shortage of our present civil procedural law, at the same time, combining the theory foundation and the society foundation which the Agreement jurisdiction rely on, the thesis puts forward some concrete ways for reforming and perfecting the Agreement jurisdiction of our country. The thesis contains five chapters.The first chapter briefly comments on Agreement jurisdiction. It firstly introduces the birth and growth of Agreement jurisdiction around the world. In the early age a lot of countries’litigations hold a hostile attitude to Agreement jurisdiction. But as time passes by, the advantages are realized, and Agreement jurisdiction is being accepted in more and more countries through legal provision or judge-made law. This chapter secondly discusses the value of Agreement jurisdiction, which plays an important role in avoiding jurisdiction conflict and increasing the predictability of litigation itself.The second chapter focuses on the key content of jurisdiction agreement. There are three theories about the essence of jurisdiction agreement, which are, procedural essence theory, contractual essence theory, and litigation contractual essence theory. The author judges these theories by analysis of autocracy principle, concluding that the contractual essence should be admitted. As for the applicable law of the jurisdiction agreement, countries’litigations differ from each other in such aspect as the applicable scope, valid forms and reasonable restrictions. The thesis concludes that, if the parties have decided the applicable law of the basic contract, that law is the applicable law of jurisdiction agreement. If the parties haven’t decided the applicable law of the basic contract, lex fori will be applied.The third chapter is the essence of the thesis. This part studies the practical connection principle. The principle refer to that there should be practical connection between selected forum chosen by the parties and disputes. The legislation in China recognizes the practical connection principle, but the courts haven’t reached an agreement on what is the practical connection. In fact, the principle is inconsistent with autocracy principle and the interest of the parties. It won’t do harm to the public interest to choose forum without practical connection. So the practical connection principle is unnecessary for our legal system.The fourth chapter discusses the restrictions on Agreement jurisdiction. Autocracy principle in international private law combines freedom and restriction, in order to protect public order and to practice fairness and justice. The restrictions on Agreement jurisdiction mainly exist in these aspects which includes reservation of public order, exclusive jurisdiction, forum non-convenience principle, protection of the weak.The fifth chapter analyses the current situation and development of Agreement jurisdiction in China. There are relative rules and regulations in civil procedure law of China, but they fail to establish a complete and consistent system. At the same time, they do not keep up with the international development. The law lacks clearly defined provisions, or the provisions are outdated. These problems haven’t been solved even after the civil procedure law was amended. According to the thesis, the rules of the valid forms, the applicable scope of the jurisdiction agreement, the scope of forum, and reasonable restrictions, should be changed in the future.