Research On The Real Connection Requirement In Jurisdictional Agreements

In today's private international law,there is a prevailing trend of respecting the party autonomy to a maximum extent,especially when it comes to international civil and commercial affairs.The jurisdictional agreement is a concrete manifestation of the principle of party autonomy in litigants' rights.According to the traditional rule,choice-of-court agreements could not be recognized as they oust the jurisdiction of the domestic courts.After a long-term period of debating between protecting national justice and respecting the party autonomy,jurisdictional agreements are now recognized by most nations in the world.Respecting the party autonomy in choice of courts and coordinating jurisdictional conflicts between countries in the area of international civil and commercial affairs have also become the common goal of the international community.The Convention on Choice of Court Agreements adopted by Hague International Conference on Private Law in 2005 provided a set of rule for both jurisdictional agreements and the recognition and enforcement of judgments regarding civil and commercial affairs.It entered into force on October 1,2015However,the traditional principle of national sovereignty and the principle of maintaining the domestic legal order have restricted the free development of theagreed jurisdiction system in the international scope.China still keeps the real connection requirements for the foreign-related jurisdictional agreement in the current Civil Procedure Law.China signed the Hague Convention in 2017 and has not ratified it.Whether to ratify the Convention,and if so,how to implement the ratification,have become urgent issues for China.Comparing the relevant provisions of the Convention and Chinese Civil Procedure Law,it can be found that the jurisdiction provision,as the core clause of the Convention,conflicts with the real connection requirement in Chinese law.After analyzing the legislative purpose of the real connection requirement and evaluating its effect according to judicial practice,it can be found that there are some problems in practice owing to the "real connection place" standard in the current law,and there is an imbalance between the purpose of the legislation and the effect in practice.China has three choices to ratify the Hague Convention regarding the conflict about the real connection requirementThis essay will focus on the jurisdictional party autonomy,especially the‘real connection requirement' that is imposed on foreign jurisdiction agreements by Chinese law.This article will be divided into four chapters.In the first part,it will introduce the basic theory of the jurisdictional agreement and the real connection requirement.The agreement jurisdiction system is the embodiment of party autonomy in the field of jurisdiction.While the jurisdictional agreements allow parties to choose a governing forum,certain restrictions are also imposed on their choice.The rationality of the agreed jurisdiction system has been recognized in most countries,but due to the differences in legal systems,social environments,and economic development conditions of various countries,the restrictions on the jurisdictional agreement are not consistent.Regarding the specific requirements of the extent of connection between the chosen forum and the dispute,common law countries and civil law countries apply the forum non conveniens and real connection requirement,respectively,to impose certain limitation to the chosen forumThe second chapter will conduct a study on the historical evolution and recent development of jurisdictional agreement and real connection requirement in several countries from both common law and civil law system.The countries selected are the United States,England,Germany,France,and Japan.Common law countries believe that jurisdictional party autonomy in civil and commercial matters shall not be restricted by the real connection requirement.The parties can choose a court unrelated to the dispute to maintain the neutrality and impartiality of forum.However,this does not mean that American courts do not consider the connection between the chosen forum and the dispute at all.The courts still have the discretion to decide the enforceability of the choice-of-court agreement.In contrast,most civil law countries,considering ensuring the certainty and stability of trials and protecting the legitimate rights and interests of the parties,will require that there should be an real and direct connection between the chosen forum and the dispute.However,with the development of jurisdictional party autonomy,the real connection principle is also gradually weakened in civil law countriesThe third part will focus on the application of real connection requirement in China's foreign-related jurisdictional agreements.The value of the real connection requirement to China will be analyzed,and opinions about the real connection requirement from both sides will be fully considered.Then,based on the analysis of the legislation and judicial practice on both the real connection requirement and its identification standards,it will point out the problems under the current law.Taking the dispute in the area of carriage of goods by sea as an example,it is demonstrated that the domicile of plaintiff and the defendant has no real connection with the case,but the law could enable the court that is essentially unconnected with the dispute to obtain jurisdiction.This is contrary to the intention of legislation.On this basis,the author suggests that the "real connection place" standard under the current law shall be modified and the scope of application of the real connection principle shall be limited,and also application of forum non conveniens could be expandedThe last part will interpret the provisions of the Hague Convention on Choice of Court Agreements regarding the real connection requirement.During the drafting of the Convention on the Choice of Court Agreements,the issue of whether the chosen court should have a connection with the dispute or the parties remained unsolved.Under the guidance of the principle of maximization of party autonomy and the insistence of the United States-led common law countries,the 2005 Convention on the Choice of Court Agreement does not change its negative position about the real connection requirement as it was in the 2001 draft.The convention allows the parties to choose a court of a neutral country,which has no real connection with the dispute.As to the application scope,the Convention excludes a large number of matters related to exclusive jurisdiction,consumer contracts and employment contracts.In other words,the Convention applies only to limited,commercial,contract-related matters.Although real connection requirement is not included in the jurisdiction clause,article 19 of the Convention allows contracting states to make a declaration that courts can refuse to exercise the jurisdiction if there is no connection between the state and the dispute.This article leaves room for the application of real connection requirement.In addition,Article 6 of the Convention sets out the "manifestly injustice" and "public policy" exceptions.The Contracting State can achieve the effect of applying the real connection requirement by interpreting the meaning of"manifestly injustice" and public policy.Finally,concerning the conflict of the real connection principle between Chinese Law and the Hague Convention,there are three main options for China to ratify the Convention.The first option is to modify the principle of real connection in China's civil procedure law to adapt to the Convention.The second is to reserve the real connection requirement but make a declaration under article 19.The last one is to maintain the real connection requirement but make no declaration regarding to article 19.