The Principle Of Essential Connection In The Choice Of Court Agreements

The thesis takes the problems existing in China’s application of the principle of essential connection in agreed jurisdiction system which involving foreign courts.After briefly discussion of the necessary basic concepts of the principle of essential connection in the beginning,the thesis straightly analyzes and summarizes the problems of China’s applying the principle in two layers: the legislation and the judicial practice.These problems are the research focus of the thesis,also the main thread.Meanwhile,through the striking structural arrangement,we can provide guidance and establish direction for the following research in extraterritorial countries.That is,how to “take others strengths and make up our own shortcomings”.Therefore,the key point in next part is legislative and judicial experiences about the application of the principle of essential connection of extraterritorial countries and international organization,especially which have reference significance to China.So,there are no more details about the complete institution of them.Based on the experiences and enlightenment that have been drawing,the conclusion part gives two paths to resolve these problems.And after comparative analysis,the thesis finds the way finally.The first part introduces the necessary basic concepts of the principle of essential connection.Firstly,the two opposite positions of the application of this principle which are“essential connection theory” and “non essential connection theory”,and comparatively analyzes the theoretical basis and applicable advantages between the two positions.Secondly,the thesis discusses how to determine whether essential connection exits.The objective determination standard and the subjective determination standard are the main methods.The former is a stricter standard,limiting the party autonomy in commercial contracts.The latter is more flexible in determining essential connection.Also,the latter reveals a change in the field of civil litigation,that is from the inherent discussion model of “doctrine of state sovereignty” against “party autonomy”,to the new direction that “to what degree of party autonomy could be sufficient to establish agreement jurisdiction”.It’s also takes into account the choice of neutral court between parties.Thirdly,this part focuses on the impact of the application of this principle in forum selection agreements which involving foreign courts,and clarifies the attractiveness of a country’s judicial system might affect it.The second part introduces the statue quo of applying the principle of essential connection in China.First of all,starting with the changes in legislation related to this principle over the years.From the limited application to the foreign-related agreed jurisdiction to gradually expanding to domestic-related agreed jurisdiction.During the process the objective determination standard of this principle has been established.Meanwhile,this part also sorts out,compares and analyzes the overall situation and partial exception in law and regulation.Besides,considering the update of the Civil Procedure Law of the People’s Republic of China,this thesis selects a few typical cases as representatives to demonstrate the changes of the determination standard of this principle in judicial practice.Especially Comparing the attitude of the Supreme People’s Court to the subjective determination standard.Finally,on the basis of the previous analysis,the thesis concludes three problems exiting China’s application of the principle,the vague legislation of the principle,the ignorance of the needs for neutral courts,the limitation of the long-term development of China’s agreed jurisdiction system.The third part compares the different practice of the principle of essential connection in extraterritorial countries.For example,Germany applying this principle depend on the commercial nature of the parties.In this way,it can avoid the negative affect while keep the principle’s positive effect to its own jurisdiction.Next is Switzerland,where the domestic law provides that a court cannot refuse an agreement jurisdiction if there is an “essential connection”.However,it should be noted that the positive effects of the reverse application of this principle is inseparable form Switzerland’s attractive judicial system to foreign litigants.In UK and US,due to the difference in legal systems,there are no application of the principle of essential connection.But there are other similar principles in theirs’ foreign-related agreed jurisdiction system.Influenced by forum non conveniens,the two countries tend to consider many specific factors,and establish some other principles such as “reasonableness test” and“suspension of an action”.The forth part analyzes the new trend of abandoning the application of the principle of essential connection in relevant international convention,such as the 2005 The Hague Convention on Choice of Court Agreements and the 2012 Brussels Regulation Ⅰ as examples.The former attaches highly prior to party autonomy by setting a series of key provisions.That’s ensure the effectiveness of the choice of court agreement.However,it inevitably ignores the protection for the developing countries and their weak parties in commercialcontracts.Countries with more attractive judicial system are more likely benefit from the Convention’s open opposition,while countries with less attractive judicial system have to obtain more obligation under the Convention.The latter is one of the regulations for judicial cooperation in EU.The abandon of the principle of essential connection reflect in canceling restriction on the parties’ nationality in agreed jurisdiction,and no more limitations on the scope of the selected courts.On the basis of the previous analysis,the fifth part gives two paths for the principle of essential connection——weaken the application of the principle or abandon the application of the principle.Also,the thesis explaining the reasons and measures respectively.The first path retaining this application of the principle,proposing precisely targeted suggestion for the problem exiting in our situation.While the second path is to advocate a new way to find alternative methods of this principle based on the overlapping interest protection scopes which can lead a smooth transition and ultimately promote the long-term development of China’s foreign-related agreement jurisdiction system.