Party autonomy in choice of court and jurisdiction over foreign-related commercial and maritime disputes in China

Zhao, Liang (2019) Party autonomy in choice of court and jurisdiction over foreign-related commercial and maritime disputes in China. Journal of Private International Law, 15 (3), 541-574. (doi:10.1080/17441048.2019.1691312).

Abstract

Chinese civil procedure law provides the choice of foreign courts through jurisdiction agreements in foreign-related commercial and maritime disputes. In Chinese judicial practice, foreign jurisdiction agreements may be held null and void because of the lack of actual connection between the agreed foreign jurisdictions and the foreign-related disputes. Chinese courts may, therefore, have jurisdiction when China has actual connection with the dispute, in particular when Chinese parties are involved in disputes. However, the actual connection requirement does not apply to Chinese maritime jurisdiction when China has no actual relation with the maritime disputes. Chinese courts also have maritime jurisdiction in other special ways although foreign courts are designated in contract. Conflict of jurisdiction over foreign-related disputes is thus caused. This article analyses how party autonomy is limited by Chinese civil procedure law and how Chinese court exercise jurisdiction when Chinese courts are not chosen by parties. This article argues that the Hague Convention on Choice of Court Agreements should be adopted to replace the actual connection requirement under the Chinese civil procedure law and Chinese courts should respect party autonomy in respect of the choice of foreign court. It is also suggested that Chinese courts shall apply forum non conveniens to smooth the conflict of jurisdiction between Chinese courts and foreign courts.

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Contributors

Author: Liang Zhao

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