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Some questions asked in court for foreign-related commercial case

How to determine whether a dispute belongs to a foreign-related commercial case?

1. Answer: In judicial practice, it is mainly determined whether a case involves foreign elements such as the subject, object, and content of the legal relationship involved in the case. In general, under any of the following circumstances, the people’s court may recognize it as a civil case involving foreign elements:

A. If one or both parties are foreigners, stateless persons, foreign enterprises or organizations; B. The habitual residence of one or both parties is outside the territory of the People’s Republic of China;
C. The subject matter is outside the territory of the People’s Republic of China;
D. The legal facts that create, alter, or eliminate civil relations occur outside the territory of the People’s Republic of China;
E. Other situations that can be recognized as foreign-related civil cases.

The people’s court may refer to the special provisions on the application of foreign-related civil litigation procedures when trying civil litigation cases involving Hong Kong, Macao Special Administrative Region, and Taiwan. After determining whether the case is a foreign-related case, it is also necessary to determine whether the case belongs to a commercial case. Overall, foreign-related commercial cases should be cases that comply with the interpretation provisions of the Civil Procedure Law and have foreign-related factors and are heard by the commercial trial court.

2. How to determine the jurisdiction of the case if the defendant has a residence within the territory of our country?

Answer: When the defendant has a residence within the territory of our country, the principles of case jurisdiction are as follows:

(1) Priority of jurisdiction by agreement, that is, the parties to a contract or other property rights dispute may choose in writing to choose the jurisdiction of the people’s court in the place where the defendant has his domicile, where the contract is performed, where the contract is signed, where the plaintiff has his domicile, where the subject matter is located, and other places that are actually related to the dispute, but shall not violate the provisions of hierarchical jurisdiction and exclusive jurisdiction; Alternatively, a written agreement can be reached to choose the jurisdiction of a foreign court located in a location that is actually related to the dispute, such as the defendant’s residence, the place of contract performance, the place of contract signing, the plaintiff’s residence, the location of the subject matter, and the place of infringement;

(2) If there is no agreement on jurisdiction between the parties, a lawsuit brought due to a contract dispute shall be under the jurisdiction of the people’s court of the defendant’s domicile or the place of contract performance;

(3) Litigation arising from disputes over the establishment, confirmation of shareholder qualifications, distribution of profits, dissolution, etc. of a company shall be under the jurisdiction of the people’s court in the place where the company is domiciled.

3. How to determine the jurisdiction of the case if the defendant does not have a residence within the territory of our country?

Answer: When the defendant does not have a residence within the territory of our country, the principles of case jurisdiction are as follows:

(1) Priority of jurisdiction by agreement, that is, the parties to a contract or other property rights dispute may choose in writing to choose the jurisdiction of the people’s court in the place where the defendant has his domicile, where the contract is performed, where the contract is signed, where the plaintiff has his domicile, where the subject matter is located, and other places that are actually related to the dispute, but shall not violate the provisions of hierarchical jurisdiction and exclusive jurisdiction; it’s fine too.

(2) If there is no agreement governing a lawsuit filed against a defendant who does not have a domicile in China due to contract disputes or other property rights disputes, if the contract is signed or performed in China, or if the subject matter of the lawsuit is in China, or if the defendant has property available for seizure in China, or if the defendant has a representative office in China, the place where the contract is signed or performed may be jurisdiction of the people’s court in the place where the subject matter of the lawsuit is located, where the property available for seizure is located, where the infringement is committed, or where the representative office is located;

(3) Litigation arising from disputes over the establishment, confirmation of shareholder qualifications, distribution of profits, dissolution, etc. of a company shall be under the jurisdiction of the people’s court in the place where the company is domiciled.

4. What are the types of cases that cannot be governed by foreign courts through agreement?

Answer: According to the provisions of the Civil Procedure Law, cases under the exclusive jurisdiction of Chinese courts cannot be governed by foreign courts. The types of cases include real estate disputes, disputes arising from port operations, inheritance disputes, disputes arising from the performance of Sino foreign joint venture contracts, Sino foreign cooperative enterprise contracts, and Sino foreign cooperative exploration and development natural resource contracts in China. The above-mentioned types of cases cannot be governed by foreign courts through agreement, but arbitration can be chosen by agreement.

5. Which courts can the parties apply to for confirmation of the effectiveness of the arbitration agreement in a case?

Answer: Cases applying for confirmation of the effectiveness of arbitration agreements shall be under the jurisdiction of the intermediate people’s court or specialized people’s court in the place where the arbitration institution is located, the arbitration agreement is signed, the applicant’s residence, or the respondent’s residence as stipulated in the arbitration agreement.

6. Which courts can the parties apply to when applying for the revocation of an arbitration award?

Answer: The parties may apply to the intermediate people’s court at the location of the arbitration commission to revoke the award.

7. Which courts can parties apply to for recognition and enforcement of foreign arbitration awards or arbitration awards in Hong Kong, Macao, and Taiwan regions?

Answer: The parties applying for recognition and enforcement of foreign arbitration awards or arbitration awards in the Hong Kong, Macao, and Taiwan regions shall directly apply to the intermediate people’s court of the place where the defendant’s domicile or property is located.

8. Which courts can parties apply to for recognition and enforcement of effective judgments and rulings of foreign courts?

Answer: The parties applying for recognition and enforcement of effective civil judgments and rulings of foreign courts may apply to the intermediate people’s court of the respondent’s place of residence, habitual residence, or property location.

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