Keynote Speakers:
Prescriptive jurisdiction of an enactment can be based on territory, nationality or residence of a person, the interests to be protected, or the nature of the conduct at issue. The principle of territoriality confines the application of a state’s statutes to conduct occurring within its territory. Extraterritorial legislative jurisdiction enables legislation to apply to conduct occurring abroad. In Taiwan, the rules on extraterritoriality in the ROC’s Criminal Code and the Administrative Penalty Act provide legitimate ground and scope to apply to extraterritorial conduct. Yet, extraterritoriality is accepted only exceptionally in domestic statutes and regulations. It is believed that its parliament’s legislative power is basically restraint by the inherent principles and spirit underlying the articles of the Constitution and the fundamental principles adopted in the civilized world. This paper analyses the historic background of the rules on extraterritoriality and the functions of its modern version and emphasizes that through the coordination and cooperation of states in prescribing the extraterritorial regulations, a global net of national regulations that leaves no hole or gap for certain conduct serves well to combat illegal practices. It discovers that the extraterritoriality follows the principle of international law and copes with the trend of foreign legislation. The effects theory is integrated to extend the scope of territoriality rather than extraterritoriality. The distinction between them is thus covered by an illusional veil. No blocking statute has been enacted in Taiwan to protect the national interests infringed by unfair overreach of foreign extraterritorial legislations. The geographic scope of the Personal Data Protection Act follows the traditional principle to protect digital data that has no concrete physical location. It is suggested to reconsider the option of adopting blocking statutes to protect national interests, and to make some proper revisions to Taiwan’s data protection law in light of the scope of the EU GDPR.
In a number of recent cases, English courts have had to consider the ambit of the court’s jurisdiction to grant anti-suit injunctions in support of foreign seat arbitration clauses. This, in turn, has raised a number of fundamental questions including as to: (a) the law applicable to the arbitration agreement and its relevance to the court’s jurisdiction to prevent a breach of a foreign seat arbitration clause; (b) the relationship between injunctive relief and relief prescribed under the New York Convention 1958 for breaches of arbitration clauses; (c) when, if ever, an English court is the most appropriate forum to restrain breaches of foreign seat arbitration clauses; and (d) whether the court is sufficiently interested in the matter to grant injunctive relief in its discretion. These issues have culminated in the recent UK Supreme Court case of UniCredit Bank GmbH v RusChemAlliance LLC, which has upheld the Court of Appeal’s ruling that it had jurisdiction to grant injunctive relief in support of a Paris arbitration clause.
In today’s globalized world, people’s movements and business activities readily extend across borders. Multinationals establish global value chains for producing and selling goods. In climate change, CO2 emissions from a single state may impact the global ecosystem. Technological advancements and the widespread use of cyberspace or blockchain pose challenges for localizing human activities and assets. These contemporary phenomena make us reconsider the limits of state jurisdiction and the legitimacy of extraterritoriality.
Jurisdiction is a fundamental notion in public international law and private international law (or conflict of laws) and links both disciplines. Jurisdiction entails three categories. Pursuant to § 401 U.S. Fourth Restatement on Foreign Relations, (a) “prescriptive jurisdiction” means the authority of a state to make its law applicable to persons, property, or conduct, (b) “judicial jurisdiction” to apply law through the judicial or administrative process, and (c) “enforcement jurisdiction” to exercise power to compel compliance with law.
While the conventional conflict of laws method focuses on “legal relationships” and looks for the closest connection to select the applicable law, the issue of jurisdiction as the territorial scope of “state authority” remains relevant. Judicial jurisdiction refers to the state’s power (jurisdiction) to adjudicate and sovereign immunity. Enforcement jurisdiction includes the taking of evidence and the enforcement of foreign judgments. Prescriptive jurisdiction accounts for the states’ unilateral law application and regulation.
Today, states often extend their prescriptive jurisdiction beyond borders to impose their regulatory norms addressing global issues like terrorism, cybercrime, bribery, antitrust, import & export, control of digital platforms and AI, business and human rights, and climate change. Alongside the U.S. and China, the EU now takes proactive measures extraterritorially to protect its market and social and economic policy. However, uncoordinated unilateral measures may lead to overlapping or contradictory regulations, causing burdens and costs for companies and foreign states. The unilateral implementation of regulatory norms may also undermine the functioning of the conventional conflict of laws system.
Against this backdrop, it is worth considering whether the exercise of prescriptive jurisdiction could be sensibly delineated and restricted. The theoretical grounds could be provided by “comity”, the “reasonableness test” (§ 403 U.S. Third Restatement), or a transposition of the conflict of laws method to distribute jurisdiction between states in a value-neutral way (Mann, Michaels). These ideas duly presuppose a multilateral approach, whereas the U.S. doctrine of the “presumption against extraterritoriality” as a blatant unilateralism scarcely helps (Buxbaum). While extraterritoriality by the Global North may be feared to amount to neo-colonialism by the Global South in the TWAIL movement, there could still be legitimate, justifying grounds for extraterritoriality in view of jus cogens, social and economic welfare, and individual’s rights in a dynamic process of substantiating public interest in the international community (Krisch, Shaffer).
“Jurisdiction Project” is underway at Hague Conference on Private International Law. This project is a “sister project” of the HCCH Judgments Project, which produced the 2005 HCCH Choice of Court Convention and the 2019 HCCH Judgments Convention. Currently, the Working Group of the Project is discussing draft provisions on matters relating to jurisdiction, in particular, the provisions dealing with parallel proceedings and proceedings of related actions. While the practical meanings of the Project and the future Convention are relatively obvious, it seems the theoretical meanings of the Project are not so clear, as the term “jurisdiction” in public and private international law has various meanings. Therefore, to capture the essence of the Project and the possible future Convention, it is necessary to explore the theoretical meanings of the Project.
In my speech, first, I will introduce the overview of the Project and the current tentative draft provisions that are discussed in the Working Group. Then, I will generally analyze the situations of parallel proceedings and proceedings of related actions from a perspective of the jurisdiction within the meaning of public international law, in particular, I will consider whether there are conflicts of jurisdiction in those situations. Through the consideration, it will be clarified what the adjustments of jurisdiction within the meaning of private international law mean in the context of parallel proceedings and proceedings of related actions. Based on such general analysis, I will discuss the nature of the international obligation under the future Convention, which will lead to the better understanding of its theoretical meanings. In my view, private international law can be regarded as a tool for international cooperation in private law matters. The Jurisdiction Project and the possible future Convention will enhance such cooperation in civil or commercial matters by dealing with the problems arising from parallel proceedings and proceedings of related actions. From such point of view, I will explain the theoretical meanings of the Project and conclude my speech with the necessary prerequisites for the success of the Project.
The above is the tentative abstract of my speech and the contents of my speech may change in the course of the further preparation.
Jurisdictional conflict arises when multiple courts of different jurisdictions assert authority over the same subject matter or parties involved in a legal dispute. The Judgments Convention marks a milestone for international cooperation, providing a wide basis for the recognition and enforcement of judgments by prescribing a set of indirect jurisdiction as filters without addressing the issue of direct jurisdiction. The role of indirect jurisdiction is worth further exploring in harmonizing jurisdictional conflict for the aim of promoting the circulation of foreign judgments.
Speakers:
We will delve into the intricacies of jurisdiction in the context of enforcing Mainland judgments in Hong Kong, with a particular focus on the newly enacted Mainland-HK reciprocal enforcement mechanism (i.e. Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance, Cap 645).
We will provide a brief overview of the transition from the old mechanism (Cap 597) to the new mechanism (Cap 645), demonstrating how these statutory mechanisms operate in practice.
We will then explore the specifics of the new mechanism, outlining the key requirements for statutory enforcement of Mainland judgments. In particular, we will discuss the jurisdictional requirements under the new mechanism.
With a comparison between Cap 597 and Cap 645, we will highlight the practical implications of the legislative changes, providing valuable insights for legal practitioners to navigate the complexities of jurisdiction in private international law.
With the growth of transnational litigation, the issue of international litigations becomes a more common problem. What should a court do when a lawsuit involving the same parties and the same issues is already pending in the court of another country? The new Chinese CPC adopts a modified first-filed principle to resolve this problem. Absent exceptional circumstances, courts should usually stay duplicative litigation so long as the first-filed foreign action has jurisdiction and its judgment can be recognized by the Chinese court.
Is there a distinctive theory of international jurisdiction in classical Islamic law? Some authors have argued that the taking and exercise of jurisdiction depend primarily on the religion of the parties involved. According to this view, if a dispute involves a Muslim, the Muslim court should always assume and exercise jurisdiction. However, if the dispute involves only non-Muslims, there are divergent views as to whether the court can assume jurisdiction and, if so, whether it should exercise it.
Others have emphasized the nature of Islamic sharia, i.e., whether it is territorial or personal. Proponents of the territorial nature of Islamic sharia argue for the unlimited prerogative of Islamic courts to hear all disputes brought before them, although they concede that in some circumstances and for convenience, disputes involving non-Muslims may be resolved by non-Muslim authorities. On the other hand, proponents of the personal nature of Islamic Sharia believe that the jurisdiction of the Muslim judge should be exercised only in disputes involving Muslims or when the parties belong to different religious communities.
The purpose of this paper is to show that this approach to the question of jurisdiction in Islamic law, and its implication on the international jurisdiction of Muslim courts is rather questionable. On the one hand, it creates a systematic correlation between jurisdiction and the applicable law. On the other hand, it overlooks the relevance of the territorial division of the world from an Islamic perspective into the dominion of Islam and elsewhere.
All law districts have to grapple with the problem to what extent should they exercise jurisdiction over defendants who have little connection with their territorial area. It is generally agreed that there should be some filters out of considerations of fairness to defendants, comity to foreign States and minimisation of forum shopping. Filters that are commonly used are gateways, their spirit and forum non conveniens. The prevalent trend is to have very wide or numerous gateways and to interpret these gateways in a non–restrictive manner, relying upon the courts’ ability to limit the exercise of their jurisdiction by reference to the principle of forum conveniens. Through the lens of Hong Kong law, this presentation will take the form of a critical analysis of these filters with particular reference to Lord Collins’s judgment in Fong Chak Kwan v Ascentic Ltd [2022] HKCFA 12. It will in particular attempt to address the issue whether the first two filters have any useful role to play today and whether forum non conveniens should be the sole restricting factor in deciding whether or not courts should take jurisdiction over foreign defendants.
Since the sovereignty handover and establishment of the Hong Kong SAR in 1997, Hong Kong has faced the dual challenges of balancing her need to facilitate a cross-border arbitration regime which is compatible with Mainland China under the principle of “one country, two systems”, and promoting herself as an international arbitration center. This article surveys all the cases of the enforcement of Mainland China arbitration awards in Hong Kong courts since the handover to present the actual interpretation of the standard of cross-border arbitration in Hong Kong with Mainland China. From this comprehensive evaluation of the enforcement landscape, this article makes a macro-proposition over the interaction between the Mainland China arbitral regime and the Hong Kong courts, with the judgments of the Hong Kong courts serving as a catalyst for improvements in the rules and practices of the Mainland China arbitral authorities.
Jurisdiction over related actions, i.e., jurisdiction based on the relatedness between several causes of action, have been developing slowly and in a less coordinated way.
On the one hand, the Brussels I bis Regulation (2012), as well as its predecessors, is hostile to the idea of jurisdiction based on the relatedness between claims against the same defendant. Meanwhile, the European regime has its own innovation where the plaintiff invokes the general jurisdiction over one of the defendants (Article 8.1).
On the other hand, Japan developed lenient rules of jurisdiction over related actions, regardless of the sameness or difference of the defendant, and, in the latter case, whether or not the claim is brought before the court of general jurisdiction over one defendant. This regime was retained in South Korea, when it promulgated its Civil Procedure Act in 1960. Although the direct application of those rules was limited to internal context, Korean courts have applied those rules mutatis mutandis to international jurisdction as well.
Interestingly, the Korean Private International Law Act of 2022 combines the traditional Japanese and Korean approach applied against the same defendant (Article 6, para. 1) and the European innovation wich requires the plaintiff’s invoking of the general jurisdiction over one of the defendants (Article 6, para. 2).
The present writer considers that the jurisdiction over related actions plays the same sort of function that is played by the accessory connection of tort to lex contractus. The jurisdiction over related actions also reduces the role of forum non conveniens doctrine, which is introduced to the European Union in 2012 (Article 34.1) and to Korea in 2022 (Article 12). Based on the above considerations, the present writer generally evaluates the 2022 reform of Korean law of jurisdiction positively. But Article 6.2 of the Korean Private International Law Act may turn out a little bit narrower than ideal.
A country’s intellectual property law is widely known for its territoriality, meaning any intellectual property right granted under that law is a right existent only within the territory of that country, and simultaneously protection of the intellectual property right granted under that law is also provided only by that law. This feature of territoriality is unique to intellectual property rights, because other property rights granted under a country’s law, like ownership of a movable, is usually recognizable by another country and can be protected by the law of another country.
The intellectual property law’s territoriality seems against its extraterritorial application, but is it true? To answer this question, I will first define what is extraterritorial application, then, employ this definition to the application of intellectual property law, and lastly propose that intellectual property law’s extraterritorial application is not only possible but also reasonable.
First, I will define extraterritoriality from its opposite concept, i.e. territoriality. A law’s territorial application means the law is applied to an event, which exclusively occurs within the territory. Thus, a law’s extraterritorial application means the law is applied to an event, which occurs without the territory, either partly without or wholly without.
Second, based on the above definition, the intellectual property law is applied extraterritorially when a dispute arises from facts taking place either partly or wholly without the territory. The dispute about intellectual property right may take various forms. It may be the existence or content of the right, or the assignment of the right, or the infringement of the right. I will limit my discussion to the dispute of infringement, and discuss it in the context of trademark law as an example of the intellectual property law.
The infringement of a trademark right granted by the law of country X, may wholly occur in country Y. In this situation, nobody will seriously argue that the trademark law of country A should be applied to protect the trademark right. In another situation, the infringement may partly occur in country A, and partly in country B. Let’s assume the infringing conduct, such as manufacturing and selling the infringed products, occurs in country B, while the infringing effect occurs in country A, such as confusion of consumers in country A, which is directly caused by the conduct of manufacturing and selling in country B. Let’s further assume that the infringed trademark is also granted under the law of country B, which, however, provides different remedies from the law of country A. Under this circumstance, the application of the law of either country is extraterritorial, and the trademark’s territoriality cannot avoid it. To claim that the application of either law is territorial, or complying with the presumption against extraterritoriality, is simply not true.
The ensuing question is whether we should apply the law of country A to protect country A’s trademark, or apply the law of country B to protect country B’s trademark. I prefer application of the law of country A, because it “strikes a fair balance between the interests of the person claimed to be liable and the person sustaining the damage”.
Recent enacted and proposed legislation on mandatory human rights and environmental due diligence (mHREDD) introduce public law sanctions and civil liability for corporations failing to exercise due diligence or reasonable care in managing such ESG risks. At present, there appears to be little appetite in the ongoing debate about direct enforcement of mHREDD regulation against corporate managers. Nevertheless, the global trend towards acceptance of mHREDD regulation means that the managerial enforcement gap deserves urgent attention. Even in jurisdictions that have yet to implement domestic mHREDD regulations, corporations are increasingly exposed to potential liability under foreign law. Mechanisms by which managers can be held civilly liable in cases of corporate breaches of foreign law – which in turn may involve choice or law or other related doctrines – should also be considered.
This paper compares managerial civil liability regimes for corporate regulatory breaches in selected common and civil law jurisdictions. It then canvasses private international law mechanisms for the purpose of holding managers liable for corporate breaches of present and future mHREDD regulation. In so doing, it examines the extent to which existing choice of law rules and the technique of taking into consideration foreign law can be invoked where a director’s actions cause a company to breach foreign mHREDD rules. This paper may therefore be of value not only to legislators and regulators taking mHREDD seriously, but also potentially victims of corporate irresponsibility seeking civil remedies.
This presentation discusses various recent cases around the world which hinged on concepts of jurisdictional immunities and their exceptions (most notably, the ‘commercial activity’ exception). Through surveying these decisions, it is observed that courts increasingly tend to creatively define, interpret and apply concepts of immunities in actions involving foreign states and state actors, in order to effectively protect the interests of private parties (mostly in their own jurisdiction) through expanding grounds of direct jurisdiction, disapplying immunities and granting extensive relief.
In addition, this presentation offers some thoughts to the newly passed 2024 Law on Foreign State Immunity in the People’s Republic of China, and its potential implications for Hong Kong in light of the Court of Final Appeal’s decisions in Democratic Republic of the Congo v FG Hemisphere Associates LLC (2011) 14 HKCFAR 95; (2011) 14 HKCFAR 395.
Lastly, this presentation draws the threads together and explores the progress and outlook of harmonisation across various approaches towards jurisdictional immunities.
Since the beginning of 2020, we have been in a season of change. From the beginning of 2020 until mid-2023, the world endured 3.5 years of Covid pandemic restrictions. In February 2022, the onslaught of the Russia-Ukraine military conflict led to economic sanctions, rising inflation and interest rates hikes, and escalated global geopolitical tensions. In March 2023, the rapid rise in interest rates resulted in the collapse of US banks, including Silicon Valley Bank, and the near collapse of Credit Suisse (with the bank’s AT1 bondholders being wiped out). Around the same time, the distress of China’s dominant real estate developers threatens to cause widespread damage to the Chinese economy. In October 2023, we witnessed the start of the Israel-Hamas war, which has the potential to become a far wider regional and global conflict. In this bearish climate, it is timely for finance lawyers and other market participants to make contingency plans and prepare defensive strategies. An area of increasing importance is the use of arbitration in resolving financial contract disputes. In this session, I will discuss:
- What are the unique characteristics of financial contracts?
- Is arbitration better at resolve disputes involving financial contracts?
- Problems with using arbitration.
This presentation examines the journey Hong Kong has been on over the past decade in concerning the manner in which debts which arise pursuant to agreements governed by arbitration clauses should be treated in insolvency proceedings. For those who have been following this odyssey, it is one of possible divergence with other common law jurisdictions that left looming questions as to when Hong Kong might come back to the fold. Recent judgments in just the past year suggested possible convergence with the English approach. However, with the UK Privy Council’s recent decision in Sian Participation Corp v Halimeda International Ltd, Hong Kong may again finds itself as an outlier.
The crux of the matter lies in whether insolvency proceedings should be stayed (or dismissed) in circumstances where the subject debt is covered by an arbitration agreement. The prevailing approach in England was the approach taken in Salford Estates (No 2) Ltd v Altomart Ltd (No 2) [2014] EWCA Civ 1575, in which the Court of Appeal held that winding up proceedings should be stayed in favour of arbitral proceedings save for wholly exceptional circumstances. Until 2018, the approach adopted in Hong Kong was such that there was no automatic stay of the winding up petition in favour of arbitration solely on the basis of the existence of an arbitration agreement. However, in Re Southwest Pacific Bauxite (HK) Ltd, [2018] 2 HKLRD 449 (“Lasmos”), we saw the Hong Kong Court of First Instance follow Salford albeit with an additional procedural requirement introduced. Under Lasmos, the winding-up petition should “generally be dismissed” if the debt relied on by the petitioner is disputed by the debtor, the contract under which the disputed debt arose contained an arbitration agreement covering the dispute relating to the debt, the debtor took the steps required under the arbitration clause to commence the contractually mandated dispute resolution process. Consequently, the court no longer needed to be satisfied that there was a bona fide dispute on substantial grounds if arbitration proceedings had been commenced. This necessarily removed discretion from the courts seized of the insolvency proceedings in its disposal of the winding up petition. In the years following Lasmos, there were instances in which the Hong Kong courts (and Hong Kong practitioners) expressed reservations with the approach.
With the judgment of the Hong Kong Court of Final Appeal in Re Guy Kwok-hung Lam [2023] HKCFA 9 and its progeny, there was hope that Hong Kong would be coming back to the Salford and the English approach. Unfortunately, such hopes appear to have been dashed with Sian Participation Corp, which rejected Salford. This leaves questions as to whether Hong Kong will again see a shift in its approach or is it more the case that England is aligning its approach with other Common Law jurisdictions that moved away from Salford years ago.
The discussion will cover the two recent CFA decisions in Fong Chak Kwan v Ascentic Ltd (2022) 25 HKCFAR 135 and SFC v Isidor Subotic (2023) 26 HKCFAR 488. These are important practical developments in the area of conflict of laws by the Court of Final Appeal. I will discuss the CFA’s rejection of the contention that Hong Kong’s jurisdiction only extends to claims where direct damage is suffered within the jurisdiction, and also its recent decision that certain claims made by the SFC do not require leave for service out of the jurisdiction.
It is well established that efficient economic policies require predictability in trade transactions and that a well-structured legal system with effective dispute settlement mechanisms is a major asset in this regard. The East and South-East Asian legal systems have identified the importance of international commercial disputes resolution mechanisms in enhancing the attractiveness of their economies. This contribution will discuss how the objective of economic attractiveness shapes the ways in which direct and indirect jurisdictions are to be defined and exercised. The resulting global legal framework is leading to competition between legal systems. This competition can be organised in a way that is contributing to the respect of rule of law by providing fair and equitable dispute resolution mechanisms. It can also foster the respect of fundamental values associated with the rule of law by the competing legal systems, as key element of their attractiveness for economic operators.
China’s jurisdiction rules in international civil litigation have just undergone legislative amendments and have formed a relatively complete system. In the context of comparative law, are the boundaries of China’s international civil litigation jurisdiction reasonable? Is its asserted jurisdiction broader or less than the general international level? In terms of the basic structure of the legislation, China’s international civil litigation jurisdiction system is similar to the jurisdiction system of civil law systems, which mainly includes general jurisdiction, special jurisdiction, agreement jurisdiction and exclusive jurisdiction, in addition to rules for parallel litigation. In terms of specific rules, China’s international civil litigation jurisdiction rules are broader, for example, the location of property available for seizure, or the domicile of representative organizations, etc., are used as the basis for general jurisdiction; the location of the subject matter, the place where the contract is signed, etc., are used as the basis for special jurisdiction, and these kind of jurisdiction rules are restricted in many countries. Among the exclusive jurisdiction declared by China, foreign investment contracts performed in China are subject to the exclusive jurisdiction of Chinese courts, which is a more special exclusive jurisdiction rule. In addition, Chinese judicial practice holds that the governing law of a forum selection clause is the lex fori, i.e., only Chinese law is applied to determine its validity, with the consequence of restricting the parties from bringing a foreign-related case to a foreign court that has no actual connection with the case, which may also be disapproved by some countries, as those countries wish to accept more international cases precisely by relaxing the conditions for jurisdiction by agreement. On the issue of parallel proceedings, China has codified the common law principle of forum non conveniens, reflecting its spirit of international comity. After being criticized by foreign countries on the issue of injunctions in SEP cases, China has shown a high degree of self-restraint by issuing almost no injunctions in the past two years. In short, China, like most countries, will expand its jurisdiction in civil litigation in the international arena. All countries should respect more of international comity to protect the due process interests of defendants.
The Carriage of Goods by Sea Act 1991 (Cth) contains a unique provision in section 11 which purports to preserve the jurisdiction of the courts in Australia in the case involving carriage of goods from or to Australia in order to protect an Australian party. The author argues, however, that the impact of this provision is in fact minimal and, the time has come to jettison it. First, a foreign court is unlikely to take note of this provision. Secondly, an exclusive jurisdiction clause nominated a foreign forum may be viewed in a different manner which makes it fall outside the ambit of this provision. Moreover, a party who is likely to sue a carrier under a contract of carriage is a foreign consignee or foreign holder of a bill of lading or a cargo insurer obtaining a subrogated right. There is no policy reason to bind or force such party to litigate in Australia. Section 11(3) which seeks to endorse only an Australian-seated arbitration is simply in contravention with the notion of party autonomy which underpins international arbitration. It is also difficult to reconcile the rationale of section 11(3) with the overall logical scheme of the New York Convention
The intersection between extraterritorial prescriptive and adjudicative jurisdiction delves into the intricate challenges of regulating and resolving legal issues with cross-border dimensions. Extraterritorial prescriptive jurisdiction refers to a state’s authority to enact laws that extend beyond its territorial boundaries, while extraterritorial adjudicative jurisdiction pertains to a state’s power to adjudicate disputes involving foreign elements. When a state enacts extraterritorial regulations, it typically aims to exercise adjudicative jurisdiction to enforce these laws effectively. However, international law presents differing principles and limits for prescriptive and adjudicative jurisdiction, rendering such attempts controversial. In practice, a state’s adjudicative jurisdiction does not usually align with the scope of its prescriptive jurisdiction. This paper explores the foundational principles, challenges, and mechanisms associated with the intersection of extraterritorial prescriptive and adjudicative jurisdiction. It explores the necessity and legality of aligning adjudicative jurisdiction with prescriptive jurisdiction to ensure the effective regulation and adjudication of cross-border matters.
The term “conflict of laws” is often considered insufficient as a title for the discipline due to the presumption that foreign jurisdictions would be interested in having their laws applied. However, there are indeed occasions where conflict of laws issues involve significant national interests of foreign countries, leading to conflicts of interest. This presentation aims to identify situations where conflicts of interest are more likely to exist, using China’s judicial practice in jurisdiction cases. Predictions will be made to forecast the future developments of China’s jurisdictional rules.
Legislative jurisdiction, adjudicatory jurisdiction and enforcement jurisdiction are sovereign power exercising at different levels that embodies the sovereign wills. In the area of public law, generally the three jurisdictions are exercised in one state and consistency is not a problem because there is the same state’s sovereign will behind them. Modern private international law (PIL) theories allow the legislative jurisdiction to be of one state, adjudicatory jurisdiction to be exercised by another and enforcement jurisdiction to be executed by a third. Consequently, consistency should have been a big problem for PIL because the three jurisdictions are split up so that there might be clash of the different sovereign wills behind them that need to be expressed. However, the issue of consistency seemingly does not bother PIL. How could PIL reconcile within itself? This presentation tries to explore this issue and through this lens, see whether PIL can adapt itself to the modern development of cyberspace.
The rise of cryptocurrencies has brought about a transformative shift in the global financial landscape, leading to increased cross-border transactions through exchange platforms and decentralised autonomous organisations (DAOs). However, the borderless nature of crypto transactions, coupled with the absence of international legal frameworks for cross-border dispute resolution, introduces uncertainties in resolving crypto-related disputes. This paper examines the jurisdictional issues associated with crypto asset transactions executed via decentralised and exchange platforms. The paper highlights the need for international cooperation and harmonised jurisdictional rules to address these challenges effectively.
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I. Relevant Provisions of China’s New Civil Procedure Law on Parallel Proceedings
On September 1, 2023, the Standing Committee of the National People’s Congress amended the Civil Procedure Law of the People’s Republic of China. In the the foreign jurisdiction section of the newly amended Law (hereinafter “New Civil Procedure Law”), new provisions for coordinating international parallel proceedings have been added, among which Article 281 is in particular typical, which stipulates that when a Chinese court is seized, if a party requests to suspend the proceedings on the ground that a foreign court has already entertained the same dispute before a Chinese court, the Chinese court may suspend the proceedings. In addition, Article 282 of the New Civil Procedure Law provides that when a party raises an objection to the jurisdiction of a Chinese court, the Chinese court may refuse to exercise the jurisdiction on the ground of forum non conveniens and inform the party to institute a lawsuit in a more convenient foreign court.
It is noteworthy, to some extent, these changes in China’s New Civil Procedure Law are similar to the provisions, under discussion, of the Hague Draft Provisions on Parallel Litigation in Civil or Commercial Matters (hereinafter “Hague Draft Provisions”), but not entirely the same.
Firstly, the rule of the first seized court is applicable to all the transnational civil and commercial litigation in China’s New Civil Procedure Law, but only to certain scenarios in the Hague Draft Provisions, which exclude 18 categories of matters from A to R as illustrated in draft article 2. Such difference shows that China steps further to coordinate international parallel litigation.
Secondly, when there exist an exclusive choice of court agreement between the parties, China’s New Civil Procedure Law does not simply confirm the selected court’s priority jurisdiction based on party autonomy, but stipulates that Chinese courts may refuse to entertain the dispute in light of an exclusive choice of court agreement, so long as it does not violate China’s exclusive jurisdiction. Even if seized, the court may also dismiss adjudication of the dispute. Such provision is more thorough and clearer than the text of the Hague Draft Provisions in that the court voluntarily refuse to exercise the jurisdiction.
Last but not the least, considering the uncertainty of the text of Hague Draft Provisions, the New Civil Procedure Law did not completely follow the wording of “more appropriate court” in the draft, but instead introduced the expression of “more convenient court” on the ground of rule of the forum non conveniens.
II. Regarding the Parallel Proceedings and Related Actions
The New Civil Procedure Law does not provide an accurate definition for “parallel proceedings”, nor does it even mention this terminology. Instead, it uses the expression, “the same dispute between the parties”, to refer to the phenomenon of parallel proceedings.
In China’s judicial practice, it remains to be seen how to understand the scope of “the same dispute”. From a doctrinal perspective, the “same dispute” between parties may have a clearer scope than the “parallel proceedings” in the text of the Hague Draft Provisions, and may also include a small number of related actions, such as items (ii) and (iii) of the definition of “related actions” under Article 3 of the Hague Draft Provisions. To this extent, the scope of international parallel proceedings coordinated by China’s New Civil Procedure Law is broader.
Consistent with the text of the Hague Draft Provisions, Article 281 of the Chinese Civil Procedure Law stipulates that “if a foreign court fails to take necessary measures to entertain a case, or fails to conclude the trial within a reasonable period of time, the people’s court shall proceed with the proceedings upon the written request of a party.” Of course, there may exist a certain subjectivity when judging between “necessary measures” and “reasonable period”. It is unclear whether such conditions should be examined based on the practice of foreign courts seized or on the judicial practice in China. Because usually the trial period for civil and commercial cases in China can be relatively short, and most foreign-related civil and commercial cases are concluded within one or two years.
III. Regarding the First Seized Court
In accordance with Article 281 of the New Civil Procedure Law, there are three exceptions when Chinese courts shall suspend proceedings, on request of a party, if a foreign court has already been seized: first, there is an exclusive choice of court agreement to choose one or more specific courts of China to the exclusion of the jurisdiction of any other courts; second, the disputes fall within the exclusive jurisdiction of the Chinese court; thirdly, Chinese courts observe that it is more convenient exercise their own jurisdiction.
The first exception is consistent with the Hague Draft Provisions, which shares the similar context. The second exception, i.e., the disputes falling within the exclusive jurisdiction of Chinese courts, is quite differentiated from the exclusive jurisdiction enjoyed by the court of the state where the immovable property is located in disputes over property rights in Hague Draft Provisions. In particular, Article 279 of China’s New Civil Procedure Law stipulates three types of exclusive jurisdiction over foreign-related disputes:
(1)An action instituted for a dispute arising from the formation, dissolution, or liquidation of a legal person or any other organization formed within the territory of the People’s Republic of China, or the validity of a resolution made by such a legal person or other organization.
(2)An action instituted for a dispute over the validity of intellectual property rights that have been examined and granted within the territory of the People’s Republic of China.
(3)An action instituted for a dispute arising from the performance of a contract for a Chinese-foreign equity joint venture, a contract for a Chinese-foreign contractual joint venture, or a contract for Chinese-foreign cooperative exploration and exploitation of natural resources within the territory of the People’s Republic of China.
IV. Regarding the Rule of A More Appropriate Court / More Convenient Court
As mentioned above, the third exception that the China’s New Civil Procedure Law excludes the jurisdiction of the court first seized is that when a Chinese court considers itself as a more convenient court to entertain the case. China’s New Civil Procedure Law does not employ the terms such as “more appropriate court” “clearer court” “most appropriate court” or “better court”.
The principle of the court first seized is the main rule to coordinate parallel proceedings in China’s New Civil Procedure Law, which stipulates that only when the Chinese court deems it more convenient to exercise the jurisdiction by itself, may it refuse to transfer jurisdiction to the court first seized.
In accordance with the basic principles of the China’s Civil Procedure Law, civil and commercial litigation should “facilitate the litigation of the parties and facilitate the court’s proceedings.” Therefore, the context of the rule “convenient court” in the amended legislation adopted by China mainly takes into account the difficulty, efficiency, and convenience of case trial and judgment execution, with almost no consideration of applicable law.
V. Conclusion
China’s New Civil Procedure Law of China generally adopts the rules of the Hague Draft Provisions for parallel proceedings, such as the rule of the court first seized and the rule of more convenient courts, but in terms of details, it is not completely the same as the text of the Hague Daft Provisions. The newly amended Civil Procedure Law not only reflects China’s open and positive attitude as well as supportive actions in the spirit of international cooperation, but also takes into account the fact that the Draft Provisions seem perfect but may not be widely adopted.
Recent developments suggest that Mainland China is attempting to claim more international jurisdiction than ever. A series of moves were seen to broaden Chinese courts’ international jurisdiction. Alongside the global trend to the establishment of international commercial courts, China is also establishing more and more international commercial courts to address the international cases. This is the move of Chinese courts to enhance the competence to address international cases. To coordinate with this process, China is amending the relevant laws or enacting new laws to broaden its competence to address international disputes. In particular, Civil Procedural Law was amended in 2023 with substantive amendments to the rules of international jurisdiction, significantly broadening Chinese courts’ international jurisdiction; in the meantime, foreign Sovereign Immunities Law was passed to empower Chinese courts to hear the sovereign immunity cases brought against foreign states. Furthermore, new instruments have been created and are being invented by Chinese courts to facilitate the deepening reform and opening up. Notably, antisuit injunctions were used by Chinese courts to compete with foreign courts in exercising international jurisdiction. With the arrival of the new institutions and laws relating to China’s attempt to claim more international jurisdiction, it is still unclear if exercise of the jurisdiction is warranted or useful.