EFFECTIVENESS OF EXCLUSIVE JURISDICTION CLAUSES IN THE CHINESE COURTS—A PRAGMATIC STUDY

2012 ◽  
Vol 61 (2) ◽  
pp. 459-484 ◽  
Author(s):  
Zheng Sophia Tang
Keyword(s):  
Prima Facie ◽  
Civil Procedure ◽  
Status Quo ◽  
Specific Context ◽  
Party Autonomy ◽  
Exclusive Jurisdiction ◽  
Chinese Law ◽  
Narrow Scope ◽  
Judicial Practice ◽  
Recognition And Enforcement

AbstractChinese judicial practice demonstrates great diversity in enforcing exclusive jurisdiction clauses. In practice, the derogation effect of a valid foreign jurisdiction clause is frequently ignored by some Chinese courts. It may be argued that these Chinese courts fail to respect party autonomy and international comity. However, a close scrutiny shows that the effectiveness of an exclusive jurisdiction clause has close connections with the recognition and enforcement of judgments. If the judgment of the chosen court cannot be recognized and enforced in the request court by any means, the request court may take jurisdiction in breach of the jurisdiction clause in order to achieve justice. Chinese judicial practice demonstrates the inevitable influence of the narrow scope of the Chinese law in recognition and enforcement of foreign judgments. It is submitted that the Chinese courts do not zealously guard Chinese jurisdiction, or deliberately ignore party autonomy and international comity. Instead, the Chinese courts have considered the possibility of enforcement of judgments and the goal of justice. Applying the prima facie unreasonable decision test is the best the courts can do in the specific context of the Chinese law. The status quo cannot be improved simply by reforming Chinese jurisdiction rules in choice of court agreements. A comprehensive improvement of civil procedure law in both jurisdiction rules and recognition and enforcement of foreign judgments is needed.

scholarly journals On the Establishment and Application of Broad Prohibition of Repeated Suits in Chinese Law – With “The Requests in the Latter Lawsuit Essentially Deny the Judgement in the Former Lawsuit” as the Object

2019 ◽  
Vol 12 (4) ◽  
pp. 79
Author(s):  
Jiazhen Guo
Keyword(s):  
Subject Matter ◽  
Civil Procedure ◽  
Chinese Law ◽  
Judicial Practice ◽  
Widespread Phenomenon

Article 247 of the Interpretation of Civil Procedure Law stipulates the prohibition of repeated suits, but it only refers to the narrow prohibition of repeated suits. Its identification elements are "the same parties, the same subject matter of claims and the same requests of the lawsuit". However, there is a widespread phenomenon in judicial practice that the court rejects the latter lawsuit by using the element “the requests in the latter lawsuit essentially deny the judgement in the former lawsuit”. Through the analysis of legal hermeneutics, this element can be used when the former lawsuit is in proceeding and should be understood as "if the latter lawsuit is made, the judgement of latter lawsuit may deny the judgement of the former lawsuit". Therefore, Article 247 of the Interpretation of Civil Procedure Law establishes the broad prohibition of repeated suits. The identification element of broad prohibition of repeated suits should be that the main points of contention of the two lawsuits are the same. With regard to the treatment of the broad repeated suits, the latter court can directly reject it, but should fulfill the obligation of “addition of lawsuit, alteration of lawsuit or counterclaim can be put forward in the former lawsuit” to the parties.

Compensation of Injuries and Homicide in Ming and Qing Law

2017 ◽  
Vol 35 (4) ◽  
pp. 977-1016
Author(s):  
Frédéric Constant
Keyword(s):  
Tort Law ◽  
Primary Concern ◽  
Legal Systems ◽  
Specific Approach ◽  
Chinese Law ◽  
Judicial Practice ◽  
Points Of View ◽  
Western Law ◽  
Central Purpose

Assessment and awarding of compensation to victims of injury and loss are among the main duties performed by courts in many different legal systems. In Western law, it constitutes a central purpose of tort law, which in itself is one of the fundamental branches of law. Did Chinese law have a specific approach to the question of compensation, which singularizes it from other legal systems? From the points of view both of statute law and judicial practice, my primary concern is to investigate whether compensation was granted to victims of injury or death under the Ming and Qing laws.

scholarly journals Proving Chinese Law in the Courts of the United States

Amicus Curiae ◽  
2021 ◽  
Vol 2 (2) ◽  
pp. 188-215
Author(s):  
Richard K Wagner
Keyword(s):  
United States ◽  
English Language ◽  
The United States ◽  
Civil Procedure ◽  
Business Culture ◽  
Republic Of China ◽  
Chinese Law ◽  
Cross Border ◽  
Chinese Business ◽  
The Us

The volume of disputes heard by United States (US) courts containing a China element continues to be robust even against a backdrop of political rhetoric concerning an economic ‘de-coupling’ of the US and China. These cross-border disputes often involve Chinese parties and special issues, some of which concern Chinese business culture, but many of which involve interpreting questions of Chinese law. How is proving Chinese law accomplished in these cases and how have US courts performed in interpreting Chinese law? This article first discusses the approach to proving Chinese law in US courts. While expert testimony is often submitted and can be valuable to a US court, the applicable US rule offers no standards by which these opinions are to be judged. And, in the China context, without specific guidance, it can be challenging for a judge, unaccustomed with China or the Chinese legal system to determine which version of the law to believe. Moreover, under the applicable rule, the US court can simply ignore competing Chinese law opinions and conduct its own Chinese law legal research, presumably using English language sources. This can lead to interesting interpretations of Chinese law to say the least. The article anchors its discussion in an examination of those recent cases which have interpreted Article 277 of the Civil Procedure Law of the People’s Republic of China. This is the legal provision of Chinese law that can be implicated in certain situations involving cross-border discovery, and there are now numerous Article 277 cases among the reported US decisions. The article analyses Article 277 by placing it within the larger context of Chinese civil procedure and argues that the language used in the provision has a special meaning within Chinese evidence law that has been obscured in those US case decisions interpreting it, leading to erroneous results. The article concludes by offering judges and practitioners some suggestions for interpreting Chinese law in future US cases. Keywords: Chinese law; US courts; Article 277; deposition; cross-border discovery; Hague Evidence Convention; Chinese civil procedure.

Jie Huang: Interregional Recognition and Enforcement of Civil and Commercial Judgments

2014 ◽  
Vol 9 (1) ◽  
Author(s):  
Tan Lee Cheng
Keyword(s):  
Hong Kong ◽  
Comparative Study ◽  
Mainland China ◽  
Status Quo ◽  
The Us ◽  
Two Systems ◽  
The Status ◽  
Recognition And Enforcement ◽  
One Country Two Systems ◽  
The One

AbstractReview of “Interregional Recognition and Enforcement of Civil and Commercial Judgments” by Professor Jie Huang (Oxford and Portland, Oregon: Hart Publishing, 2014) which analyses the status quo of judgment recognition and enforcement in the Mainland China, Macao and Hong Kong under the ‘One Country, Two Systems’ regime. The book also presents a comparative study of the interregional recognition and enforcement of judgments in the US and EU.

Establishing the Circumstances of Civil Cases: Some Doctrinal and Practical Approaches

2021 ◽  
Vol 16 (12) ◽  
pp. 53-68
Author(s):  
S. M. Mikhailov ◽  
M. D. Olegov
Keyword(s):  
Russian Federation ◽  
General Rule ◽  
Civil Procedure ◽  
Judicial Practice ◽  
Legal Fiction ◽  
Close Relationship ◽  
Arbitration Procedure ◽  
The Russian Federation ◽  
Civil Cases ◽  
True Knowledge

The paper analyzes certain provisions of civil procedural legislation in terms of their effectiveness as a means of establishing actual circumstances of civil cases by the court from the standpoint of doctrine and judicial practice. The authors examine the relationship between the presentation and disclosure of evidence, draw a conclusion about their close relationship, and their identification, sometimes admitted by judicial practice, is critically assessed. The question of the period for disclosure of evidence was investigated, in respect of which it was concluded that provisions of the Code of Civil Procedure of the Russian Federation, although not quite specific, but sometimes quite definitely allow this period to be established. Taking into account the stance of the Supreme Court of the Russian Federation, then authors propose a solution to the problem of the consequences of non-disclosure of evidence in a civil case. The paper analyzes individual norms and institutions that allow the court to establish the circumstances of civil cases without evidence or on the basis of explanations of the other party. It is concluded that the norm of the second sentence of Part 1 of Art. 68 of the Code of Civil Procedure of the Russian Federation is neither a legal fiction nor an evidentiary presumption. This is one of the manifestations of the action of the general rule for the distribution of the duty of proof. The authors support and justify the position that the norm of Part 31 of Art. 70 of the Arbitration Procedure Code of the Russian Federation is an evidentiary presumption, and the presumption not of fact, but of evidence. In relation to Part 3 of Art. 79 of the Code of Civil Procedure of the Russian Federation, it is concluded that establishment of the facts by the court by applying this norm does not mean obtaining true knowledge about them. Therefore, this provision of the civil procedure law is applied in judicial practice with extreme care.

Jie Huang: Interregional Recognition and Enforcement of Civil and Commercial Judgments, Oxford and Portland, OR: Hart Publishing, 2014, 352 pp. Hardcover £65/€84.50

2014 ◽  
Vol 9 ◽  
pp. 381-385
Author(s):  
Tan Lee Cheng
Keyword(s):  
Hong Kong ◽  
Comparative Study ◽  
Mainland China ◽  
Status Quo ◽  
The Us ◽  
Two Systems ◽  
The Status ◽  
Recognition And Enforcement ◽  
One Country Two Systems ◽  
The One

AbstractReview of “Interregional Recognition and Enforcement of Civil and Commercial Judgments” by Professor Jie Huang (Oxford and Portland, Oregon: Hart Publishing, 2014) which analyses the status quo of judgment recognition and enforcement in the Mainland China, Macao and Hong Kong under the ‘One Country, Two Systems’ regime. The book also presents a comparative study of the interregional recognition and enforcement of judgments in the US and EU.

scholarly journals Zarzut potrącenia jako podstawa powództwa opozycyjnego po zmianach wprowadzonych na mocy ustawy z dnia 4 lipca 2019 r. o zmianie ustawy – Kodeks postępowania cywilnego oraz niektórych innych ustaw (Dz.U. 2019, poz. 1469)

2020 ◽  
Vol 29 ◽  
pp. 198-212
Author(s):  
Andrzej Olaś ◽  
Keyword(s):  
Civil Procedure ◽  
Practical Application ◽  
Judicial Practice ◽  
Civil Proceedings ◽  
Theoretical Assumptions

This article discusses the issue of the set-off defense as the basis for an action to limit or cancel the enforceability of an enforceable title after amendments as provided for pursuant to the Act of 4 July 2019 amending the Act – Code of Civil Procedure and some other acts. The purpose of the article is to indicate the basic interpretative issues emerging from the regulations contained in the Article 840 § 1 item 2 of the Code of Civil Procedure which are likely to pose major problems in its practical application and to offer some reasoned proposals for their solution in a manner consistent with theoretical assumptions and at the same time as useful as possible for judicial practice in the civil proceedings.

scholarly journals Recognition and Enforcement of Arbitration Awards in Kazakhstan

2018 ◽  
pp. 358-367
Keyword(s):  
Public Policy ◽  
New York ◽  
General Meeting ◽  
Civil Procedure ◽  
International Arbitration ◽  
Procedure Code ◽  
Recognition And Enforcement ◽  
The Law ◽  
The Republic ◽  
New York Convention

Arbitration, as an alternative way to resolve commercial disputes, has been used in Kazakhstan for more than twenty years. Arbitration Court is governed by Civil Procedure Code, The Law On Enactments and the Regulatory Resolution. The expansion of the list of documents in the Regulatory Resolution does not comply with the requirements of the New York Convention and therefore, the purpose of our study is to clarify it. The research institute of private law of the Caspian University together with Kazakhstan International Arbitration prepared proposals for making amendments and supplements to the Law On Arbitration and the CPC at the request of the Arbitration Chamber of Kazakhstan. Most of the proposals developed by us were approved and included in the Draft Law of the Republic of Kazakhstan On Amendments and Supplements to Certain Enactments of the Republic of Kazakhstan On Enhancing Protection of Title and Arbitration after discussion at the meetings of the General Meeting members of Arbitration Chamber of Kazakhstan. It was proposed to bringing in compliance with the New York Convention some paragraphs of the Art. 255 and the Art. 504 of CPC and a series of articles in the Law on arbitration. In this article also given answers to some questions of the arbitration court regarding corporate and marriage dispute, as well as an issue of contradiction public policy.

scholarly journals Judicial mediation in the code of civil procedure of the Republic of Moldova

2021 ◽  
Author(s):  
Alexandru Prisac ◽  
Keyword(s):  
Civil Procedure ◽  
Legal Institution ◽  
Republic Of Moldova ◽  
Judicial Practice ◽  
The Republic

In this article, a relatively new civil procedural institution from the Code of Civil Procedure of the Republic of Moldova was analyzed. All the procedural conditions in which judicial mediation takes place were analyzed. Those problematic aspects regarding the application in judicial practice of this legal institution were not overlooked. Likewise, those legislative imperfections existing in the Code of Civil Procedure on judicial mediation that we propose to be removed by amending and supplementing this legislative act were highlighted.

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