Maritime Claim Preservation System, The Central African Entities And Entity Jurisdiction

Maritime procedure law is quite different from general civil procedure law. It contains much more foreign and practical factors. At the very beginning of a maritime proceeding, the problem of jurisdiction may be the first thing to deal with. Jurisdiction plays an important part in maritime procedure law. In August 2000, Model Law of Private International Law of PRC was published by Chinese Society of Private International Law. Article 55 of this masterpiece provides a new concept of Non-Substantive Jurisdiction which draws for the first time a distinction between Non-Substantive Jurisdiction and Substantive Jurisdiction. Many systems in maritime procedure law, such as maritime claims preservation system, maritime injunction system, maritime evidence preservation system as well as the constitution system of limitation fund for maritime claims, are concerned with Non-Substantive Jurisdiction and Substantive Jurisdiction. It will do much good to the practice of maritime procedure law to have a thorough study on the subject, as the distinction between Non-Substantive Jurisdiction and Substantive Jurisdiction is quite important and worthwhile and the relative practice in China is rare and scarce. Meanwhile, the issue of Non-Substantive Jurisdiction and Substantive Jurisdiction has got little attention from the academic society. As a result, the study of Non-Substantive Jurisdiction and Substantive Jurisdiction can fruit much.Under such background, in this dissertation, the issue of Non-Substantive Jurisdiction and Substantive Jurisdiction has been positively studied and all the specific manifestations and practical significance of the issue have been detailed accordingly.The dissertation is divided into four parts.The first chapter provides explanations of Non-Substantive Jurisdiction and Substantive Jurisdiction, the general principle governing the relations between the above two, their specific manifestations in maritime procedure law and the practical significance to distinguish Non-Substantive Jurisdiction and Substantive Jurisdiction.In the second chapter, the issue of Non-Substantive Jurisdiction and Substantive Jurisdiction in the maritime claims preservation system is studied by taking vessel arrest - the classic maritime claims preservation measure as an example. Maritime claims preservation system was established by the issuance of the Maritime Procedure Law of the People's Republic of China. Such system, with reference to International Convention on Arrest of Ships, purportedly mixed civil law's property preservation system and common law's action in rem. The relation between Non-Substantive Jurisdiction and Substantive Jurisdiction differs from each different stage when maritime claims preservations are adopted. If maritime claims preservations are conducted before actions, Non-Substantive Jurisdiction is exercised before SubstantiveJurisdiction, and the former may be a very important cause to perform the latter. When maritime claims preservations are conducted during actions, Non-Substantive Jurisdiction is exercised after Substantive Jurisdiction, and the court with Substantive Jurisdiction may surrender its jurisdiction to the more convenient court with Non-Substantive Jurisdiction.South Africa's Associated Ship system contains unique provisions in term of vessel arrest and has great impact on Chinese state-owned vessels. In recent years, Chinese state-owned vessels have been frequently arrested there due to such system. With respect to the Associated Ship system, South African courts may easily exercise Non-Substantive Jurisdiction upon Chinese state-owned vessels, obtain Substantive Jurisdiction accordingly and force Chinese shipping companies to stand before the court in South Africa. Suggestion is given in the second chapter to overcome this difficulty by invoking the Inconvenient Court principle and preventing the possession of Substantive Jurisdiction from exercising Non-Substantive Jurisdiction.The third chapter further provides the significance of the Forum Non Conveniens principle. Without such principle, court with Non-Substantive Jurisdiction may obtain Substantive Jurisdiction by adopting maritime claims preservation. When such preservation is taken during action, nothing happens between Non-Substantive Jurisdiction and Substantive Jurisdiction. The introduction of the Forum Non Conveniens principle will result differently. No matter when such preservation is taken, court with Non-Substantive Jurisdiction, in case that it is a convenient court and the court of the place of property, may exercise Substantive Jurisdiction accordingly. Although there is no such principle in China, suggestion is advanced in this chapter to introduce the Forum Non Conveniens principle and perfect the relative provisions of China's maritime procedure law.The forth chapter contains several proposals to perfect the relative provisions of China's maritime procedure law in terms of Non-Substantive Jurisdiction and Substantive Jurisdiction, which are all based upon the analysis provided in the previous chapters.In those cases with foreign factors, the problem of jurisdiction is not only domestic but also international. It is really a great advancement of modern civil procedure law theory to classify the general jurisdiction and adopt relative rules governing the relation between Non-Substantive Jurisdiction and Substantive Jurisdiction. Although the five-year old Maritime Procedure Law of the People's Republic of China contains so many innovations to the traditional civil procedure law, modifications have to be made as both practical and academic advancement have taken place. The purpose to study such subject is just to make the relative laws of China sound and perfect.