On The Feasibility Of China’s Accession To The Hague Judgment Convention

The Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters(hereinafter referred to as Hague Judgment Convention or Convention)was adopted at the Hague Conference on Private International Law in 2019,Article 5 and Article 6 of the Convention stipulate the indirect jurisdiction.The provisions of indirect jurisdiction are crucial in the Convention.In the process of formulating the convention,the model of the Convention changed from a double mixing convention to a single convention,and there were great disputes about specific indirect jurisdiction provisions in various countries.Indirect jurisdiction is one of the conditions for the recognition and enforcement of foreign civil and commercial judgments.The purpose of indirect jurisdiction is to protect the interests of the parties and safeguard the judicial sovereignty of the country.Indirect jurisdiction is of great significance to the recognition and enforcement of foreign court judgments.To some extent,the indirect jurisdiction provisions of the Convention decide whether a country joins the Convention or not.Therefore,this paper chooses indirect jurisdiction as the perspective to researchThe Convention takes the legislative model which specifies the types of indirect jurisdiction.The model has its advantages,which can provide reference for China’s indirect jurisdiction legislation.Article 5 and Article 6 of the Convention are specific provisions of indirect jurisdiction.Article 5 contains 3 paragraphs.The first paragraph contains 13 subparagraphs,which respectively stipulates general jurisdiction,counterclaim,consent jurisdiction,forum prorogatum,indirect jurisdiction in specific civil and commercial cases and non-exclusive choice of court agreement.Paragraph 2 focuses on protecting the dominant position of the vulnerable like consumers and employees.Provision 3 stipulates that the provisions of paragraph 1 shall not apply to court decisions on real estate leasing for residential purposes or real estate registration.Article 6 stipulates the exclusive basis of recognition and enforcement,that is,despite the provisions of Article 5,the judgment of real property right can be recognized and enforced only when the original judgment country is the place where the property is located.The Convention is a global Convention.The attitude of some countries,major economic countries in the world or China’s trading partners,to join the Convention has an impact on whether China will join the Convention or not.The role played by the Convention and its operational effect can only be reflected after the accession of many countries.Although the USA is less likely to join the Convention,because of the great possibility of the EU,Japan and some "the belt and road initiative" countries joining,the Convention can play its role,so China should consider joining the Convention.There are legislative deficiencies of China’s indirect jurisdiction.The basic laws have no provisions about indirect jurisdiction.Bilateral treaties are few in number and the provisions on indirect jurisdiction are quite different.Judicial practice seldom investigate indirect jurisdiction.So the laws on indirect jurisdiction need to be improved.By comparing Chinese laws with the provisions of the Convention,it is found that the general jurisdiction provisions are reconcilable,the counterclaim provisions have no obvious conflict,the forum prorogatum and consent jurisdiction provisions are basically the same,the scope of specific civil and commercial jurisdiction is larger than that provided for in the Convention,and the exclusive choice of court agreement is lacking.Although there are differences between Chinese jurisdiction and the Convention,as a whole,these can be coordinated.By joining the Convention,China can make legal interpretation of its provisions,form China’s own understanding of the provisions,and enhance the speaking right in interpretation.At the same time,accession to the Convention will expand the number of recognition and enforcement of foreign civil and commercial cases,protect the interests of Chinese citizens,and improve the level of China’s international law.It can also increase the number of legal talents and improve the overall legal awareness of the people.The advantages of China’s accession to the Convention outweigh the disadvantages.Therefore,it is feasible for China to join the Convention.China should improve the legal provisions of indirect jurisdiction when China joins the Convention.It can refer to the legislative model of the Convention and adopt the method of specific enumeration to stipulate indirect jurisdiction in the Civil Procedure Law.At the same time,the review standard of indirect jurisdiction should be clearly defined in the Civil Procedure Law.The refusal to recognize and enforce cases over which China has exclusive jurisdiction also need to be added.Then general jurisdiction,counterclaim,consent jurisdiction and forum prorogatum need not be modified with reference to the provisions of direct jurisdiction in domestic cases.Specific jurisdiction can be partially modified.Add non-exclusive choice of court agreement provisions.Finally,the principle of maximum recognition and enforcement of foreign court judgments should be adopted to resolve conflicts of laws.