On the Jurisdiction of Foreign Divorce Cases in China

This article takes China’s jurisdiction over foreign-related divorce cases as an entry point, and systematically expounds the provisions of China’s foreign-related divorce jurisdiction. According to my country’s regulations, my country’s jurisdiction over a foreign-related divorce is vertically divided into direct jurisdiction and indirect jurisdiction, and horizontally divided into personal Jurisdiction, territorial jurisdiction, exclusive jurisdiction, and jurisdiction by agreement. In my country’s Civil Procedure Law and related judicial interpretations, the domicile of the “plaintiff is the defendant” and the location of the plaintiff under certain circumstances is the main focus. The general solution path of the case; At the same time, my country's regulations on foreign-related divorce cases still have shortcomings, and there are still many areas that need to be improved. This article analyzes the shortcomings and the areas to be improved.

Personal Jurisdiction Based on the Location of a Server: Chinese Territorialism in the Internet Era?

Whether a court can exercise personal jurisdiction based on the location of a server in internet tort cases is a controversial issue. Its significance comes from the paradox that the internet is de-localized because it is ubiquitous, but servers are indispensable to the internet and every server has a geographic location. Since 2001, Chinese law has allowed courts to exercise personal jurisdiction solely based on the location of a server or other computing equipment in intellectual property infringement cases. Recently, it has extended this jurisdiction rule to all internet torts. This paper asks whether the location of a server should be considered as the place where the tort occurs and whether this territorial-based jurisdiction rule can suffice its public-law legislative goal. It may enrich current research about technology-mediated legal challenges to private international law in two aspects. Firstly, it conducts a broad international survey by looking into laws in China, the US, Australia and the EU. It also analyzes where the tort occurs when servers are owned by an infringer, a third party or an infringee in domain name registration, service outsourcing, platform, cloud computing, commercial spams, etc. It concludes that in legal theory, the location of the server is not the place where an internet tort occurs. Secondly, by analyzing China’s experience, it argues that, in the internet era, states have to look for private-international-law tools to advance their public policy claims. However, the practice shows that the territorial-based jurisdiction rule is limited in fulfilling its pubic-law legislative goal.

Intellectual Property—Internet Jurisdiction and Applicable Law

Chapter 12 covers jurisdiction and applicable law in respect of internet cases involving intellectual property (IP). It covers both registered rights (eg trademarks, patents, design rights) and unregistered rights (eg passing off, copyright). It incisively discusses the relationship between IP and the territoriality principle, and how the English courts have moved away from the strict territoriality rule in recent years. The chapter discusses the Berne Convention and, within the EU, the Copyright Directive overcoming the strict territoriality of copyright. It includes a discussion of domain names and in rem jurisdiction at the place of registration of the domain name. The chapter then moves to an explanation of the jurisdictional rules in England, as well as the harmonized EU rules in the Brussels Regulation. The chapter analyses in rem, subject-matter jurisdiction and its interplay with personal jurisdiction under the Brussels Regulation and the English Jurisdiction rules. The chapter briefly discusses the jurisdictional provisions in the EU Trademark Regulation, Community Design Regulation, and the European Patent. Finally, it covers the rules on applicable law in the Rome II Regulation and the Berne Convention.

Conflicts of Law and Internet Jurisdiction in the US

Chapter 9 focuses on conflicts of law and jurisdiction in internet cases before the US courts and contrasts the US approach with that found in EU states. It examines jurisdiction as emanating from the due process clause of the US Constitution and the relevant caselaw. It analyses jurisdictional due process and minimum contacts jurisprudence in general, the distinction between general and specific personal jurisdiction and the application of the jurisdictional principles to internet cases. It then continues by looking at specific doctrines and how they have evolved in respect of internet disputes, such as the effects doctrine, stream of commerce cases, and e-commerce contracts. The chapter analyses the doctrines tempering the assumption of jurisdiction and governing the interface with foreign law and, specifically forum non conveniens, comity, and reasonableness. Finally, it examines procedural jurisdiction in the context of adjudications and conflicts of law with regard to (civil litigation) evidence and draws conclusions from the subject matters examined.

A Menu of Models

Given the limited availability of the International Criminal Court (ICC) when it comes to the crimes being committed in Syria, chapter 6 presents an array of legal theories and practical modalities for exercising international jurisdiction that do not involve the ICC or the U.N. Security Council, including a number of innovative paradigms for creating a dedicated ad hoc international tribunal. These options include the potential for a subset of states to pool their respective jurisdictional competencies to create a tribunal reminiscent of the Nuremberg Tribunal. Other available models include additional action at the U.N. General Assembly; a regional tribunal within the League of Arab States; a tribunal created by way of an international agreement among interested states; trials before specialized chambers in liberated areas within Syria or within neighboring states with varying degrees of international involvement; or the building of a shell of a special chamber that could be eventually inserted into the Syrian judicial system post-transition. Any of these models could incorporate various elements of hybridity. The chapter argues that many of these models offer a better option for the situation in Syria than the ICC given the extent and nature of the international crimes being committed (war crimes in a largely non-international armed conflict) and limitations within the ICC’s subject matter and personal jurisdiction. The chapter closes with a pragmatic discussion of steps that the international community could have taken to lay the groundwork for any of the models discussed, even prior to the end of the conflict or a political transition in Syria.

Personal Jurisdiction and Fifth Amendment Due Process Revisited

This chapter addresses the contested role of U.S. courts in adjudicating disputes with foreign elements. As a matter of domestic law, the Due Process Clauses in the U.S. Constitution constrain the scope of adjudicatory jurisdiction that legislatures can confer on State and federal courts. The Fourth Restatement restates the U.S. law of personal jurisdiction in civil proceedings as requiring that “sufficient contacts” exist between the defendant and the forum, “and that the exercise of jurisdiction be reasonable.” These criteria limit the reach of U.S. courts’ personal jurisdiction. The chapter explores these limits and Congress’s ability to extend them. It also revisits the history and jurisprudence of Fifth Amendment due process limits on personal jurisdiction, considering the Anti-Terrorism Clarification Act of 2018 (ATCA) and the Promoting Security and Justice for Victims of Terrorism Act of 2019 (PSJVTA).