Research On Issues Of Civil Jurisdiction Agreement Concerning Foreign Affairs In China

The prosperity and development of multilateral trade exchanges have set higher requirements for the settlement of transnational civil and commercial disputes.The rule of jurisdiction by agreement make the court chosen by parties to be the determining jurisdiction court,which effectively alleviates the conflict of jurisdiction between countries and improves the efficiency of transnational dispute resolution.This means the impetus for international trade.Therefore,many countries have established the legal status of contractual jurisdiction in the field of foreign-related,China is no exception.In addition to legal jurisdiction,the jurisdiction of the selected courts for related disputes is based on legal and effective jurisdiction agreements,The establishment and effectiveness of the jurisdiction agreement are related to the legitimacy of the agreement jurisdiction.In view of the fact that the jurisdiction agreement has both contractual content and procedural litigation,its placement in the foreign-related civil and commercial fields has caused countries to respect the contractual nature and also set restrictive provisions to ease the possible impact on domestic judicial sovereignty in procedure.The main issue around the construction of restrictive regulations is the positive deterministic jurisdiction agreement(without special instructions,hereinafter referred to as a foreign-related civil and commercial Litigation jurisdiction agreement).The current mainstream view is the litigation contract theory,and the contractuality of the agreement is more prominent.This concept should be implemented in all aspects of the jurisdiction agreement rules.The Convention on Choice of Court Agreements(hereinafter referred to as the 2005 Hague Convention)is the first global convention on civil jurisdiction and judgment,and it was signed by the representative of China on September 12,2017.This is an opportunity to rethink and improve the rules of jurisdiction agreement in China.Examining China's current legislation and practice,it is not difficult to find the following problems: First,the establishment of a jurisdiction agreement in terms of form elements,negotiable jurisdictional matters,and restrictions on the chosen court are inadequate and uncertain in the legislation,leading to different practice in local courts;in the second reviewof effectiveness,in general,the lack of regularity.The first is the lack of validity determination rules,resulting in judges having to make their own discretion.The second is the lack of effective rules of law.Given that the Supreme People's Court once characterized the agreement as a procedural issue and applied the lex fori,local courts have followed suit.It is inconsistent with the litigation contract theory.Third,the limitation on effectiveness is lacking.Although there are exceptions to exclusive jurisdiction and effective connection restrictions in China,the scope of foreign-related exclusive jurisdiction should be limited to real estate disputes,and the effective connection requirements should be abolished.From the perspective of the 2005 Hague Convention,if the presumption rules for exclusive effectiveness of the Convention are adopted,as many jurisdiction agreements as possible can be protected by the Convention.In the non-exclusive jurisdiction agreement,the parties' intentions should be carefully explored with the contract interpretation rules.When evaluating effectiveness,specific standards should be moved closer to the Convention to increase the institutional appeal of domestic courts compared to foreign courts.At the same time,in order to impose the necessary restrictions on the validity of the jurisdiction agreement,the public policies and obvious unfair review allowed by the 2005 Hague Convention can be found in China's existing legal system,but China should make certain amendments and improvements with the goal of strengthening the protection of the weak;In addition,Among the applicable rules of law that are unavoidable around foreign-related issues,if the jurisdiction agreement applies to the law of the chosen court,it will effectively balance judicial sovereignty and autonomy of will.When the jurisdiction agreement is established and effective,it can draw on the institutional arrangements of the 2005 Hague Convention and divide the implementation of the jurisdiction agreement into the jurisdictional obligations of the selected court,the cooperation obligations of the unselected court,and the relief of the non-defaulting party.First,the obligation of the selected court is very clear,and it should have jurisdiction over related disputes.Second,unselected courts can use conditional suspension,which can better protect the interests of domestic courts and parties in legal effects.In addition,in the conflict of interregional jurisdictions,the situation of transfer needs to be considered.Finally,the remedy rights of non-defaulting parties have been blank in China'slegislation.For this reason,in the face of anti-prosecution injunctions in other countries,a behavior preservation system can be used to counteract it.However,clear legislation and follow-up of related systems are still needed here.In addition,considering that the litigant's actions in an unselected court may cause economic losses to the non-defaulting party,starting from the contractual nature of the jurisdiction agreement,the theory of malicious litigation,and justice,China should also allow non-defaulting parties to file a lawsuit with the court suit for damages.