| Jurisdiction over foreign-related civil litigation agreements,also known as consensual jurisdiction,agreed jurisdiction,and common law countries are generally referred to as court selection agreements or court selection clauses.The parties may agree on the terms of the agreement or reach a separate agreement.The emergence of the agreement jurisdiction system is mainly based on the expansion and application of the principle of autonomy of will.From the perspective of public power itself,the relationship between public power and private rights,and the relationship between private rights,the agreement jurisdiction system has its meaning and existence.So far,the jurisdictional system for foreign-related agreements has been established in China for less than 30 years.The provisions on the jurisdictional system of foreign-related agreements are still not mature.The legislative provisions are too simple and general,too emphasizing formal requirements,and lacking protective provisions for substantive justice.There are differences in the development trends of the international community.Under the Belt and Road Initiative,China is required to fully respect the rights of parties to choose jurisdictions in the process of exercising jurisdiction,and to conduct judicial cooperation with various countries to reduce conflicts of jurisdiction and to respect the jurisdiction of other countries while safeguarding China's jurisdiction.right.Therefore,it is necessary to study the validity of the agreement jurisdiction clause in foreign-related civil litigation.At the international level,the 2015 Hague Convention on Choice of Courts entered into force with the entry of the European Union.In 2017,China signed the Convention and actively prepared for the ratification of the Convention.Most scholars in the theoretical circle have affirmed the ratification of the Convention.Attitude,and the Convention fully respects the autonomy of the parties.On the basis of coordinating the conflicts of laws of the negotiating countries,the scope of application of the Convention is expanded,and the effectiveness of the choice clause of the court is recognized as much as possible.The EU Brussels Regulation I was revised on the basis of the Brussels Convention.It has absorbed and borrowed from the previous conventions and the experiences of member states.It has been further improved and achieved successful practices in the EU.Worth learning.The Anglo-American legal system countries are represented by the United States.The United States,as an advocate of the Convention and one of the signatories to the Convention,has experienced an attitude of denial to recognition of the validity of the terms of the agreement.The current US courts are generally in the jurisdiction of the agreement.The issue of the validity of the provisions is more open and flexible,and there are a large number of case law to study.The inconvenient court principle directly related to the validity of the jurisdiction of the agreement is derived from the reference of the Anglo-American legal system..The civil law countries of the country,represented by Germany,Germany's agreement jurisdiction has similarities with China,mainly limiting the effectiveness of the agreement jurisdiction clause from the positive elements.Therefore,this paper mainly studies the EU regional treaties and the Hague international conventions,the United States,Germany and other countries related legislation and judicial practice,combined with the problems existing in China's legislation and judicial practice,the more general content of China's foreign-related agreement jurisdiction system Be clear and improve on content that is not reasonable enough.This paper focuses on solving the main problems in the validity determination of the jurisdictional clauses of China's foreign-related civil litigation agreements.Except for the basic content of the jurisdictional system of the agreement and the factors,status quo and trend of the validity of the agreement jurisdiction clause,the second,third and fourth Part of the study is based on the three aspects of the applicable law and the effectiveness of the procedural law of the substantive law.The applicable law requires both the first law and the law to be applied.It is the premise and basis for determining the validity of the terms of the agreement.The substantive requirements of the contract of the substantive law stem from the characterization of the jurisdiction of the agreement as a private law,which corresponds to the substantive issue of the jurisdiction of the agreement.It mainly refers to the requirements for the entry into force of general contracts,and the international level generally recognizes the method of dividing the formal and substantive requirements.The effectiveness of the procedural law not only examines whether the terms of the agreement have an effect on the proceedings,but whether it can be enforced by the court of the case,which stems from the characterization of the jurisdiction of the agreement as a litigation,which corresponds to the procedural issue of the effectiveness of the agreement,so these three aspects It is important to determine the validity of the terms of the agreement.Finally,the fifth part introduces the enlightenment to relevant legislation and judicial practice in China.details as follows:The first part is an overview of the validity of the agreement jurisdiction clause.On the one hand,it introduces the theoretical basis of the agreement jurisdiction system,including a general understanding of the emergence and development of the agreement jurisdiction system,and clarifies its concept and classification and nature,including its existence.Controversy,and based on its classification,indicate the main research object and reason of this paper,determine the nature of its litigation contract and serve as the basis for the selection of the applicable law.On the other hand,it introduces the basic content of the validity of the jurisdiction clause of the foreign-related civil litigation agreement of the international community.First,the validity of the agreement jurisdiction clause is independent.Secondly,the validity of the agreement jurisdiction clause is closely related to the nature of the litigation contract.Therefore,the premise of determining the factors determining the validity of the agreement jurisdiction clause clarifies the validity of the superior conceptlitigation contract.The compromise is more reasonable than the "one behavior and gender" theory.Finally,it introduces the development trend of the validity of the court selection clause under the Convention on the Choice of Court Agreements in The Hague.The second part studies the applicable law of the jurisdiction clause of the agreement.There are four theoretical theories,namely,the law of the court of the case,the law of the principal contract,the law of the chosen court,and the legal choice of the agreement.In the past judicial practice,the courts of most countries recognized the jurisdiction of the agreement as a procedural issue,and directly applied the law of the court of the case.Countries quickly discovered that the above-mentioned unreasonable application of the applicable law began to define it as an entity issue,because the parties agreed in the main cooperation to apply the applicable law and then apply the main contract law.In addition,the parties rarely stipulate separately in the contract the law that should be applicable to the terms of the agreement.Subsequent to the emergence of the distinction between the application of the United States judicial practice on the interpretation and enforceability of the distinction,the German courts believe that the issue of debt in accordance with conflict norms to select the applicable law.The Brussels Regulation I and the Hague Convention on the Choice of Court Agreements are unified,and their provisions are consistent.They are mainly based on the application of the law of the chosen court,supplemented by the law applicable to the court.The third part studies the substantive law requirements of the jurisdiction clause of the foreign-related civil litigation agreement.The research was carried out on the formal and substantive elements respectively.On the formal requirements,the written form was widely recognized,but the United States,Germany and other countries or international conventions did not use the written form as the only effective form.It also recognizes the validity of other formal requirements that provide proof in unwritten form.On the substantive elements,there are two parts.On the one hand,the parties have the ability to contract and reach a consensus.The agreement is true and consistent.The meaning of the agreement is the key review of the substantiveelements of the jurisdictional agreement,because it implies The protection of the weak side,on the other hand,the content must be legal.The fourth part studies the procedural law effect of the jurisdiction clause of the foreign-related civil litigation agreement,which not only checks whether the agreement jurisdiction clause has effect on the litigation procedure,but whether it can be executed by the court.On this issue,the main methods of censorship in civil law countries and common law countries are different.Civil law countries usually restrict the types of applicable civil disputes and the scope of optional courts in the form of statutory law.The country is mainly judged by the inconvenient court or public policy review whether it can be effective or not,and whether it can be executed by the court.The provisions of international conventions are generally based on the outcome of the game and bargaining of the parties to the Convention.Therefore,the Convention generally has defined the scope of civil disputes applicable to the Convention by means of exclusion.The EU Brussels Regulation I only affirms the exclusive jurisdiction of a country.Restrictions on jurisdiction,but do not specify the specific scope of exclusive jurisdiction.There are no specific rules such as level jurisdiction,public policy and inconvenient courts.Therefore,the procedural law review concerning whether the terms of the agreement are valid for the proceedings,the convention generally does not directly stipulate,but according to the respective provisions of its member states.The fifth part studies the enlightenment of extraterritorial legislation and judicial practice on the jurisdiction of China's foreign-related civil litigation agreements.First,on the issue of the applicable law,it is unreasonable for China to apply the law of the court in a unified manner in judicial practice.It should be differentiated and applied.The substantive issue applies to the law of the chosen court and is consistent with the convention.Whether or not to stipulate the applicable law of the main contract is deterministic and predictable in the application of the law,and is the most fair and reasonable for the parties.The procedural issue applies to the law of the court of the case to determine whether it is binding on the court.Secondly,regarding the substantive provisions,it is not appropriate to first strictly limit the written form ofChina as a requirement for entry into force,and should not place too much emphasis on its formal elements,and can draw on other forms in extraterritorial countries or international conventions.Secondly,in the substantive elements,in the contract of the weak party,we should pay attention to the determination of the agreement and the protection of the weak party,and draw on the "reasonable notice standard",and at the same time give the weak parties the right to choose.At the same time,the scope of contract disputes and property rights disputes will be clarified.Third,regarding the effectiveness of its procedural law or called enforceability.First,moderately expand the agreement to govern the types of civil disputes that can be applied,and clarify the scope of contracts or other property disputes.The scope of exclusive jurisdiction shall be adjusted to cancel the exclusive jurisdiction of disputes arising from the performance of the three types of Chinese and foreign contracts in China.Secondly,reduce the restrictions on the parties' choice of the court and expand the scope of the actual contact principle.Level jurisdiction should be more flexible and applicable to judicial practice.When the agreement of the agreement jurisdiction meets other effective requirements,if the court level agreed in the agreement does not meet the requirements,the validity should be recognized and adjusted within the corresponding administrative division..Then,to improve the principle of inconvenient courts,China is more rigorous when applying the principle of inconvenient courts,often only emphasizes its passive negative function,and its application method is relatively simple.It should focus on substantive justice without overemphasizing the satisfaction of formal conditions.no.Finally,the introduction of public policy as a clause to limit the entry into force of the agreement jurisdiction clause,the public policy in the recognition and enforcement of the judgment is advanced to the judgment of jurisdiction,public policy has applicable space in China,can be introduced as a pocket clause In order to prevent the unfair agreement from taking effect,the article promotes the substantive justice of the case. |
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