Research On The Conflict Of Validity Of Foreign Commercial Consensual Jurisdiction Clause

The consensual jurisdiction clause is appointed in the international commercial contract.It has already been a rule approved by most countries in the international economic and trade exchanges at present,however,the legislation on the effect of foreign commercial consensual jurisdiction clause are dissimilar in different countries.The conflict of the validity of the foreign commercial consensual jurisdiction clause in international commercial lawsuits is an unavoidable issue in international commercial litigation and a core problem in determining the attribution of jurisdiction in cases involving foreign affairs.The conflict of the validity of the foreign commercial consensual jurisdiction clause is the contradiction about the basis for determining the validity of the foreign commercial consensual jurisdiction clause and legislation on the requirement of validity in different Courts.It is a preliminary question to decide the final jurisdiction of the case involving foreign affairs.Maybe the conflict of the validity of the foreign commercial consensual jurisdiction clause is the conflict between the superiority of Public Law and the superiority of Private Law,but it's a conflict in which the capital of every country wants to maximize its benefits on a global scale from the respect of law and economics.The conflict is mainly manifested in the contradiction of applying applicable law to the validity of the foreign commercial consensual jurisdiction clause;the contradiction of applicable to the principle of physical association;the contradiction of formal elements of the foreign commercial consensual jurisdiction clause.Currently,the main international conventions on the validity of foreign commercial consensual jurisdiction clause are <Brussels I Regulation> and <Convention on Choice of Court Agreement>.They are in the leading position and the legislation in the field of consensual jurisdiction with detailed regulations and extensive effect.They have also become the reference object of many countries in examining the validity of foreign commercial consensual jurisdiction clause.Now,there are three kinds of theories in determining the validity of foreign commercial consensual jurisdiction clause:Doctrine of forum law;The applicable Law of the main contract;Litigation theory.From my point of view,foreign commercial consensual jurisdiction clause itself includes the question of enforceability and the problem of interpretation.The former applies the law of the forum of the case,while the latter applies the law of party agreement.The legislation should give a broad interpretation and explanation of the formal elements of the effect of foreign commercial consensual jurisdiction clause.At present,the judicial practice of foreign commercial cases in our country is not suitable to abolish the "principle of practical connection",but the author thinks that the principle should be appropriately modified or interpreted.So far,there are many views in the theoretical circle about the validity of the foreign commercial consensual jurisdiction clause.The current law of our country does not make a clear provision on the applicable law which should be applied to the jurisdiction clause of the agreement in international commercial disputes.In this context,it is essential to study the applicable law and formal elements of foreign commercial consensual jurisdiction clause.It can fill a long-standing blank space of legislation.Based on the analysis of the domestic and international conflicts,this paper summarizes the experience of international treaties and national legislation in determining the effectiveness of the jurisdiction clauses of foreign commercial jurisdiction agreement.Some valuable suggestions are provided for China to solve the conflict of the validity of the foreign commercial consensual jurisdiction clause.