Research On The Legal Effect Of Asymmetric Jurisdiction Clauses

The conflict of jurisdiction over international civil and commercial litigation is difficult to solve effectively,some countries often established complementary principles or systems to avoid this problem,such as first-seized court approach,lis pendens,forum non conveniences.As the extension of autonomy of private law and freedom of contract in the field of international civil litigation,the jurisdiction agreements generally allow the parties to choose the court which have jurisdiction on solving disputes,before or after the controversy.The system has been widely recognized for its effect to avoid the conflict of jurisdiction,and has been fully developed.But with the social system and economic structure change and development,it is difficult for the single form of jurisdiction clauses to produce effective expectation,prompting the diversification and complication of its form and content.The subject of this article,asymmetric jurisdiction clauses,are one of the many.The asymmetric jurisdiction clauses,also referred to as unilateral jurisdiction clauses,and hybrid jurisdiction provisions,as described herein,usually give one party the right to sue in any other competent courts,but limited the other party to sue in the designated court.Based on the considerations of corporate litigation strategy,this type of clause appears in the international contract of carriage of goods by sea,international financing leasing contracts and international financial loans contracts.Because of its formal manifestations of "asymmetry of rights" and "uncertainty of requesting courts or arbitration jurisdictions",many problems have arisen,resulting in a number of disagreements and disputes.The author through the common case search databases,a total of 30 cases were collected.After analyzing the types of dispute cases,the forms of asymmetric jurisdiction clauses,and the results of their validity,the author believes that there are mainly the following main problems in our foreign-related trials.First,the definition of the nature of the asymmetric jurisdiction clauses are divided,including the definition of exclusion and non-exclusion,the definition of procedure and substance,the definition of property rights.Second,the determination of the legal effect of the asymmetric jurisdiction clauses are divided,including results and basis.Third,the law applicable to the asymmetric jurisdiction clauses are divided.In view of the problems that appear in the judicial practice as mentioned above,this paper attempts to explore how to improve the legal effect of the asymmetric jurisdiction clauses in our courts,combining with the judicial practice and theoretical development of foreign courts.First,the nature of the asymmetric jurisdiction clauses are defined.The definition of exclusion and non-exclusion should be based on the parties of the contract to determine its specific nature,such as the grant of an option,it should be considered as non-exclusive jurisdiction clauses,and vice versa as exclusive jurisdiction clauses,in addition,should be Case-specific analysis of the case.It is obviously difficult to completely define the nature of the definition of procedural and substantive.Therefore,the nature of the matters involved in the asymmetric jurisdiction clauses should be considered synthetically,It is more appropriate to define the type of litigation contract.The "asymmetric right" in the asymmetric jurisdiction clauses should be defined as civil procedural options from the perspective of civil procedural jurisprudence and affect the determination of the legal effect of asymmetrical jurisdiction clause.Second,the law applicable of asymmetric jurisdiction clauses,should based on the party autonomy and the coordination of the principle of national judicial sovereignty,to increase the certainty of the law applicable.Therefore the law applicable of asymmetric jurisdiction clause should be divided.About the question,we can learn from foreign judicial practice,and from the perspective of Hague Convention on the choice of the court agreement,the legal effect of the clause is governed by the law chosen by the parties.When there is no agreement to choose a law,lex fori applies.About the law applicable of the interpretation of as asymmetric jurisdiction clauses,should be consistent with the law applicable to the main contract.Finally,in defining the legal effect of the asymmetrical jurisdiction clauses,we should make full use of the rules of effective relief from the perspective of safeguarding the rights of parties.There are other problems in judicial practice of our country,such as the independence of asymmetric jurisdiction clauses.These issues can be improved from many angles.