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Analysis Of “Practical Relation” In Jurisdiction Of Xuanhui International Logistics Case

Posted on:2017-10-29Degree:MasterType:Thesis
Country:ChinaCandidate:C F HanFull Text:PDF
GTID:2346330485998040Subject:Law master law
Abstract/Summary:PDF Full Text Request
Agreement jurisdiction is a system that courts are conferred jurisdiction under the special agreements or provisions in which the interested parties agree that the emerged civil and commercial disputes or possible disputes in the future should be heard in national courts or foreign courts(the third country). When there is an agreement between the parties, the identification of the validity of the jurisdiction agreement determines on whether the court can exercise jurisdiction.Despite the wide acceptance of the agreement jurisdiction system in international society, there exist differences among countries concerning the concrete regulations of the system especially the related factors between the chosen court and the case dispute. The law of our country demands effective connection between agreement jurisdiction and case dispute, or the court shall reject to recognize the validity of the jurisdiction agreement. Nevertheless, the legislation and judicial practice of many other counties have proven that the demand of effective connection between agreement jurisdiction and case dispute may be not necessary. On this regard, the demand of effective connection on agreement jurisdiction of our country is too strict. While reducing the demand of effective connection does not mean there would be no restrictions on agreement jurisdiction. In fact, there are restrictions in every country. China can reasonably restrict the agreement jurisdiction with defined legal force and scope.This text is a total of 16000 words, dividing into four parts except for the introduction.The first part is a case introduction about the main details and dispute focuses of the jurisdiction objection case involving Xuanhui International Logistics Co., Ltd and Chile South American Shipping Co.(hereinafter referred to as Xuanhui International Logistics case).The second part is the positioning of “effective connection” in jurisdiction. The agreement jurisdiction system of China was established in Civil Procedure Law of the People’s Republic of China in 1991. And still no clear explanation of “effective connection” is made by law. Therefore, it is necessary to research deeply on positioning it as enabling or declarative regulation from the perspectives of theory and judicial practice.The third part is the criteria of “effective connection”, describing that there exist subjective and objective standards to identify “effective connection” in judicial technical operation. In this case, both courts of two levels adopted the objective connection standard holding that the choice of lex fori has no “effective connection” with the case dispute, and the writer puts forward different opinions.The fourth part is reflection of this case. Even restriction on agreement jurisdiction is common in each country, the demand of “effective connection” is not reasonable. The law shall maintain national interests in international trades by regulating the nature of jurisdiction agreement, loosening form requirements, perfecting the non-convenience principles and improving the protection of the weak etc. While the demand of “effective connection” between agreement jurisdiction and case disputes is not proper.As multilateral treaty of international agreement jurisdiction system, the Hague Convention on Choice of Court agreement in 2005 does not require connections between agreement jurisdiction and case disputes. Actually, the judicial interpretation about the agreement jurisdiction between the mainland and Hong Kong made by the Supreme Court clearly learns from the Hague Convention on Choice of Court agreement in 2005. And considering that there is no requirement of “connection” on the choice of proper law, the demand on forum choice by agreement shall be reduced.
Keywords/Search Tags:Agreement jurisdiction, Agreement on jurisdiction, Practical relation, Judge criteria, Objective standard, Subjective criteria
PDF Full Text Request
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