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Rethinking The Legislation Of The Forum Non Conveniens Doctrine In China

Posted on:2021-01-30Degree:MasterType:Thesis
Country:ChinaCandidate:H X GongFull Text:PDF
GTID:2416330605972861Subject:International Law
Abstract/Summary:PDF Full Text Request
Forum non conveniens is a kind of "fine-tuning" means of jurisdiction for the purpose of protecting the justice of a case after a court of a country has jurisdiction over the case.The rule was originally designed to balance the excessive expansion of the domestic jurisdiction basis.In the past 30 years,scholars have tried to explore the value orientation of Forum non conveniens from the development of the doctrine in the Anglo-American law system,and then study its concrete applicable standards from the perspective of its own value orientation.Few scholars study this doctrine' status quo in China's foreign-related civil procedure jurisdiction system from an international perspective.Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters(hereinafter referred to as the "Convention")recently negotiated and adopted at the Hague Conference on Private International Law provides an opportunity for research into this area of endeavour from an international perspective.There is a coordination conflict between the restrictiveness of the basis for indirect jurisdiction under the Convention and the expansion of the basis for foreign-related direct jurisdiction of China,and it is theoretically possible that a judgment rendered in accordance with the provisions of our country on foreign-related direct jurisdiction cannot acquire the qualification for recognition and enforcement due to its failure to meet the requirements of the provisions on indirect jurisdiction.This dilemma of coordination has the greatest potential to impede our accession to the Convention and to delay the progress that the Convention has made available to China.Therefore,it is necessary for us to find a way to alleviate the predicament in order to respond to the new requirements of international judicial cooperation.From the angle of promoting international judicial cooperation,this paper re-examines the functional choice of Forum non conveniens in China,and discusses whether it can meet the needs of promoting international judicial cooperation in China's judicial practice and provide a new way to balance the excessive jurisdiction and promote the international judicial cooperation.In the first chapter,the paper makes clear the predicament of coordination between the norms of direct jurisdiction and indirect jurisdiction and the deep cause of the predicament,which lays a foundation for the following discussion.Compared with the jurisdiction basis of the norms of direct foreign-related jurisdiction of China,the jurisdiction basis of the norms of indirect jurisdiction of the Convention attaches more importance to the closeness of the connection between the case and the court accepting the case,and pays no attention to whether the jurisdiction basis is comprehensive but whether the jurisdiction basis is reasonable.In retrospect to the legislative process of the Convention,the Convention on Civil and Commercial Jurisdiction and the Recognition and Enforcement of Foreign Judgments(Draft)(hereinafter referred to as the "Draft Convention")drafted at the 1999 session made efforts to establish internationally unified norms on direct jurisdiction.If the Convention eventually followed the dual convention mode of the Draft Convention,in theory,the difficulty of coordination would not have arisen.However,the differences in legal culture and legal traditions rooted in different legal systems make it difficult to construct a unified norm of direct jurisdiction and eradicate the barriers to excessive jurisdiction of sovereign states.On this premise,sovereign states will not voluntarily surrender their judicial sovereignty.Therefore,the barriers to excessive jurisdiction cannot be eradicated is the deep cause of the difficulties in coordination.The key to alleviating the dilemma lies in balancing the excessive jurisdiction caused by the expansion of the norms of direct jurisdiction concerning foreign affairs.The second chapter explores the way to alleviate the dilemma of jurisdiction coordination,from the perspective of legislative restriction and judicial control,to find out whether the time is ripe to eliminate excessive jurisdiction through legislation,and then to discuss the judicial control means of balancing excessive jurisdiction.At present,the time is not ripe for the rule of excessive jurisdiction to be ruled out by legislation.On the one hand,the rule of indirect jurisdiction is not to eliminate excessive jurisdiction,but to make the contracting states no longer subject to the game of reciprocity standard.In the face of the fact that the national and national sovereignty barriers still exist,to abandon the rule of excessive jurisdiction is to give up the opportunity to participate in international judicial competition.On the other hand,besides the role of safeguarding national sovereignty and the interests of litigants,the rule of excessive jurisdiction plays a vital role in protecting the openness of the whole system of jurisdiction in foreign-related civil proceedings.With the development of society,more and more types of disputes need the timely complement of the expansion of jurisdiction rules.Considering that the time is not ripe for legislation to exclude the rule of excessive jurisdiction,this paper then discusses the judicial control means of balancing excessive jurisdiction.In the United States,Forum non conveniens has been developed in case law in order to balance the excessive expansion of jurisdiction.China also formally introduced the doctrine into the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China(hereinafter referred to as the "Interpretation of Civil Procedure Law")in 2015.Although the doctrine only applies upon the application by the parties concerned,We cannot deny its reverse balancing function against excessive jurisdiction,and the discussion on the system may also provide new ideas for promoting international judicial cooperation.The third chapter examines the role of the rule in alleviating the dilemma and discusses the balance of the excessive jurisdiction function of the system in China.Judging from the present situation of judicial application,the judge mostly chooses the thinking of reverse reasoning when demonstrating whether the facts of the case conform to the provisions of Article 532 of the Interpretation of Civil Procedure Law,and overturns its application by proving that the facts of the case do not conform to one or more of the provisions of the law.This rule can only play the role of restricting excessive jurisdiction in a few foreign cases which have no connection with China.In most cases,there is no applicable space,and its function of restricting excessive jurisdiction is greatly weakened.Chapter four focuses on the influence of public policy and judicial policy on the choice of the function of the doctrine in our country,clarifies its development prospect,and discusses the crux of the weakening of the function of the rule and puts forward some feasible suggestions on the modification of the rule.First of all,through the analysis of the evolution of the application of the Forum Non Conveniens Principle in the United States,it is found that public and judicial policies affect the choice of the Forum Non Conveniens Principle.The principle of forum non conveniens in our country is going through an important period of innovation in public policy and judicial policy.The "the Belt and Road" initiative calls for the establishment of an open jurisdiction system for foreign-related civil proceedings,with a focus on cooperation in competition while enhancing the international competitiveness of justice and responding to the concerns of other countries in competition.From this point of view,the system of jurisdiction of foreign-related civil action in our country needs not only the openness and inclusiveness of the system,but also the reverse balance of the system by a reasonable mechanism,so as to form a virtuous circle.Therefore,the function of restricting excessive jurisdiction by the doctrine of forum non conveniens should be strengthened.The weakening of the function of restricting excessive jurisdiction of the principle of forum non conveniens is the result of the joint action of the legislative design and the content of the provision.The key to strengthen the function of restricting excessive jurisdiction of the rule is to ensure that the judge needs to make a " forum converiens"judgment in the application of the rule,whether forward reasoning or reverse reasoning,so that the core meaning of the rule can play a role in the judicial practice.This paper proposes that the fourth item of the original law should be deleted on the basis of retaining the design of the original law,and delete the condition that "Chinese law is not applicable to the case" in the fifth item.The modified Forum Non Conveniens Principle not only strengthens its function of restricting excessive jurisdiction,but also makes the judge shift the focus to the judgment of" forum converiens" or not.At the same time,we also need to ponder the unchanged part of the system.With the development of society,even if the framework of "forum non conveniens" is maintained,the weight of various factors that affect its applicability should be adjusted in the judicial practice.
Keywords/Search Tags:Forum non conveniens doctrine, Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, Indirect jurisdiction
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