By Sophia Tang, Wuhan College
China’s New Civil Process Regulation adopted in 2023 and taking impact from 1 Jan 2024 introduces vital modifications to the earlier civil process regulation concerning cross-border litigation. One of many key modifications pertains to selection of courtroom agreements. Up to now, Chinese language regulation on selection of courtroom agreements has been criticized for being outdated and inconsistent with worldwide widespread apply, notably as a result of it requires selection of courtroom clauses to be in writing and mandates that the chosen courtroom should have “sensible connections” with the dispute. After China signed the Hague Alternative of Courtroom Conference, there was hope that China would possibly reform its home regulation to align with the Hague Conference’s phrases and finally ratify the Conference.
The New Civil Process Regulation retains the previous provision on selection of courtroom agreements, stating that events can select a courtroom with sensible connections to the dispute in writing (Article 35). This provision is included within the chapter coping with jurisdiction in home circumstances, however historically, Chinese language courts have utilized the identical necessities to selection of courtroom clauses in cross-border circumstances.
The 2023 Modification to the Civil Process Regulation introduces Article 277 as a brand new provision particularly addressing selection of courtroom agreements in cross-border circumstances. It states that if events in cross-border civil disputes select Chinese language courts in writing, Chinese language courts could have jurisdiction. Notably, this provision doesn’t require that the chosen Chinese language courts have sensible connections with the dispute. In different phrases, it might indicate that when events in cross-border disputes select Chinese language courts, Chinese language courts will settle for jurisdiction no matter whether or not they have any connection to the dispute. The elimination of the sensible connection requirement is meant to encourage abroad events to decide on Chinese language courts as a impartial discussion board for resolving disputes. It is a essential step in enhancing the worldwide reception of the Chinese language Worldwide Business Courtroom (CICC) and advancing China’s objective of changing into a dispute decision hub for Belt and Street initiatives.
This modification aligns with the Hague Alternative of Courtroom Conference, which respects celebration autonomy and reduces the necessities for making events’ consent to the competent courtroom efficient. Moreover, the New Civil Process Regulation prevents Chinese language courts from declining jurisdiction primarily based on discussion board non conveniens (Artwork 282(2)) or lis pendens (Artwork 281(1)) when a selection of Chinese language courtroom clause exists, according to the obligation of the chosen state underneath Article 5(2) of the Hague Alternative of Courtroom Conference.
Nonetheless, controversy stays. Since Article 277 explicitly applies to conditions the place Chinese language courts are chosen, it doesn’t tackle the selection of overseas courts. The New Civil Process Regulation doesn’t embrace a selected provision addressing the conditions for selecting overseas courts. It’s probably that the conditions for selecting overseas courts will comply with the final rule on prorogation jurisdiction in Article 35. Pursuant to this interpretation, if events select a overseas courtroom, the selection is legitimate solely whether it is made in writing and the chosen courtroom has sensible connections with the dispute. This creates an uneven system in worldwide jurisdiction, making it simpler for events to decide on Chinese language courts than overseas courts. It leaves room for Chinese language courtroom to compete with a selected overseas courtroom, which can show China’s coverage to advertise the worldwide affect of Chinese language courts and to guard the jurisdiction of Chinese language courts in China-related disputes.
This uneven system is barely appropriate with the Hague Alternative of Courtroom Conference, which relies on reciprocity. If China ratifies the Hague Conference, the uneven system can not operate successfully. Underneath Article 6 of the Conference, a non-chosen courtroom of a Contracting State should droop or dismiss proceedings. Even when a selection of overseas courtroom clause is invalid underneath Chinese language regulation, it will not meet any of the distinctive grounds listed in Article 6. The dearth of a sensible reference to the chosen courtroom can’t be interpreted as resulting in a “manifest injustice” or being “manifestly opposite to the general public coverage” of China.
After all, as a result of the New Civil Process Regulation doesn’t make clear the conditions for selecting overseas courts, different interpretations are doable. Article 280 offers that if events conclude an unique selection of courtroom clause choosing a overseas courtroom, and this selection doesn’t violate Chinese language unique jurisdiction or have an effect on China’s sovereignty, safety, and public curiosity, Chinese language courts might decline jurisdiction if the identical dispute has been introduced earlier than them. This implies that China doesn’t intend to create a big distinction between the selection of overseas and Chinese language courts. If that is certainly the legislative intention, one different interpretation is that Article 35 ought to apply completely to selection of courtroom clauses in home proceedings. Within the absence of clear guidelines governing selection of overseas courtroom clauses in cross-border proceedings, this example might be analogized to the selection of Chinese language courts in such proceedings. Consequently, the identical situations outlined in Article 277 ought to apply equally to the selection of overseas courts. This interpretation would improve the regulation’s compatibility with the Hague Alternative of Courtroom Conference.
It isn’t but clear which interpretation will in the end be accepted. The Supreme Individuals’s Courtroom (SPC) ought to present judicial steerage on this matter. Hopefully, allowing for the potential of ratifying the Hague Alternative of Courtroom Conference, the SPC will undertake the second interpretation to pave the best way for China’s ratification of the Conference
