Perfection Of Contractual Jurisdiction Of International Civil And Commercial Procedurals In China

Contractual Jurisdiction is one of the most important parts in the international civil and commercial procedural. To analyze contractual jurisdiction in Chinese law, as well as to improve the legislation about it, Brussels I Regulation, which has longer history and more practical experience, is chosen to the comparison object and lessons to Chinese Civil Procedural Law. Contractual jurisdiction in EU Law is introduced and compared to Chinese Law. By analyzing reasons, advantages and disadvantages of legislation, suggestions would be proposed to improve Chinese contractual jurisdiction.There are five parts in this thesis, the first part introduces conception and theoretical basis about contractual jurisdiction. Three main points in this part. First is to distinguish contractual jurisdiction in internal procedural law to international procedural law. Second is to analyze basic theory of international jurisdiction and drawing a conclusion that contractual jurisdiction derives from the fairness theory. The third point is to reaffirm the exclusive effect of contractual jurisdiction because its judicial certainty.The second part introduces the legislation about contractual jurisdiction in China, and finds that pattern of the legislation, validity of contractual jurisdiction and limitation of contractual jurisdiction are worth to discuss. On the other hand, this part analyses the possibility for China to take lessons from EU law because of its rich experience and long developing history, although there are some differences between EU law and Chinese law.The third part is point at new vision of Chinese civil procedural. Based on difference of internal civil procedure and international civil procedure, the consolidation of internal contractual jurisdiction and international contractual jurisdiction is doubted. At the same time, tacit prorogation is deemed to combine with contractual jurisdiction.The fourth part analyses the validity and legality of contractual jurisdiction from the point of formal elements and substantial elements. By taking lessons from EU law, more forms should be introduced into contractual jurisdiction in Chinese law and the limitation of actual link should be removed.At last the fifth part refers to some other jurisdiction or principles, which may give limitations to contractual jurisdiction. By comparing Chinese Civil Procedural Law and Brussels I Regulation, making a conclusion that it is reasonable for exclusive jurisdiction and protective jurisdiction to limit the applying of contractual jurisdiction. So that protective jurisdiction should be introduced from EU law to Chinese law to protect weaker party in certain legal relationship. On the contrary, remove limitation by principle of forum non conveniens and other principles in lis pendens, by analyzing the relations between these principles.