The difference between foreign-related case jurisdiction and domestic case jurisdiction in civil and commercial cases
According to the civil procedure law, the jurisdiction of foreign-related civil litigation includes general territorial jurisdiction, special territorial jurisdiction, agreement jurisdiction and exclusive jurisdiction.
- General territorial jurisdiction
Like general civil cases, general territorial jurisdiction in foreign-related civil proceedings refers to the jurisdiction court that determines disputes based on the principle of the defendant’s location, and applies the relevant provisions of the general provisions of China’s civil procedure law. China’s civil procedure law has no special provisions on the general jurisdiction in foreign-related civil proceedings, but according to the provisions of article 237 of the civil procedure law, if there are no provisions in foreign-related civil proceedings, other relevant provisions of the Civil Procedure Law shall apply; Accordingly, as long as the defendant has a domicile in China, the people’s Court of China has jurisdiction. This is the embodiment of the principle of personal jurisdiction.
- Special territorial jurisdiction
China’s Civil Procedure Law on the special territorial jurisdiction in foreign-related civil litigation mainly involves the jurisdiction of foreign-related contract disputes and other property rights and interests disputes. According to Article 243 of the civil procedure law, the court of jurisdiction for a lawsuit brought against a defendant who has no domicile in the territory of China due to contract disputes or other foreign-related property rights and interests disputes.
In domestic civil actions, the following civil actions shall be under the jurisdiction of the people’s Court of the place where the plaintiff has his domicile:
A lawsuit concerning identity relationship brought against a person who does not reside within the territory of the people’s Republic of China;A lawsuit concerning the identity of a person whose whereabouts are unknown or who has been declared missing; A lawsuit brought against a person undergoing reeducation through labor;A lawsuit against a imprisoned person.
Cases arising from contract disputes shall be under the jurisdiction of the people’s Court of the place where the defendant has his domicile or where the contract is performed. The parties to a contract may agree in a written contract to choose the people’s Court of the place where the defendant has his domicile, where the contract is performed, where the contract is signed, where the plaintiff has his domicile, and where the subject matter is located to exercise jurisdiction, but they may not violate the provisions of this Law on Hierarchical Jurisdiction and exclusive jurisdiction.
A lawsuit brought for infringement shall be under the jurisdiction of the people’s Court of the place where the infringement is committed or where the defendant is located.
If the defendant has a representative office in China, it shall be under the jurisdiction of the people’s court in the place where the representative office is located.
- Agreement jurisdiction
Jurisdiction by agreement means that some foreign-related civil cases are negotiated and agreed by both parties that a court in a certain country should exercise jurisdiction over the case. Agreement jurisdiction includes express agreement jurisdiction and implied agreement jurisdiction. Jurisdiction by agreement is a jurisdiction system widely used in international economy and trade. This system fully respects the wishes of both parties, and the parties can choose the jurisdiction of the court of the country where either party is located, or the court of a third country that has a specific connection with the litigation.
Express agreement jurisdiction
Article 244 of China’s civil procedure law stipulates that “the parties to a foreign-related contract or property rights and interests dispute may, by written agreement, choose the court in the place that has actual connection with the dispute for jurisdiction. If the court of the people’s Republic of China is chosen for jurisdiction, it shall not violate the provisions of this Law on Hierarchical Jurisdiction and exclusive jurisdiction.” This is the regulation of express agreement jurisdiction.
According to this provision, a written agreement is a prerequisite for the jurisdiction of the agreement. The parties can agree on the jurisdiction of both Chinese courts and foreign courts. The jurisdiction of a foreign-related agreement shall meet the following conditions:
First, the cases governed by foreign-related agreements are limited to foreign-related contracts or foreign-related property rights and interests disputes. For disputes involving identity relationship, the court of jurisdiction should generally be determined according to factors such as nationality, and cannot be governed by agreement.
Second, agreements governed by foreign-related agreements must be in writing.
Third, the court of jurisdiction chosen by the agreement must be the court that has actual contact with the disputed case. For example, in the case of foreign-related contract disputes, the courts of the place where the contract is signed, the place where the contract is performed, the place where the subject matter is located, the place where the plaintiff has his domicile and the place where the defendant has his domicile are all courts that have actual contact with the case.
Fourth, the parties can only agree on the court of first instance jurisdiction of the case, but cannot agree on the court of second instance jurisdiction.
Fifth, the choice of jurisdiction court for foreign-related agreements shall not violate the provisions of China’s Civil Procedure Law on Hierarchical Jurisdiction and exclusive jurisdiction.
In judicial practice, the court chosen by the parties by agreement does not conform to the jurisdiction of the level provisions of Chinese law. The people’s court should not consider the Agreement invalid, but should deal with it in accordance with the provisions of Chinese law on level jurisdiction. If the relevant case has been accepted by the relevant people’s court, the court accepting the case shall transfer it to the people’s court with jurisdiction according to the provisions on jurisdiction at different levels.
Implied agreement jurisdiction
Implied agreement jurisdiction, also known as respondent jurisdiction, refers to that if both parties fail to reach a written jurisdiction agreement before or after the dispute, one party brings a lawsuit in a court of a certain country, and the other party does not raise an objection to the jurisdiction exercised by the court of that country, and unconditionally responds to the defense or raises a counterclaim, it is deemed to recognize the people’s court being sued as a court with jurisdiction. Article 245 of the Civil Procedure Law of China stipulates this. Like the jurisdiction of express agreement, the people’s court against which the action is brought shall not conflict with the jurisdiction of the court on the determination of Hierarchical Jurisdiction and exclusive jurisdiction in China’s civil procedure law.
In judicial practice, for commercial disputes outside China, in addition to disputes involving real property rights, if the parties choose to litigate in Chinese courts by written agreement, Chinese courts will obtain jurisdiction over the case. If there is no written agreement between the parties, as long as one party brings a lawsuit to the people’s court, and the other party responds to the lawsuit and pleads on the substantive issue, it is also deemed that the parties recognize the jurisdiction of the people’s court.
According to Article 148 of the opinions on the application of the Civil Procedure Law of the Supreme Court, “if a party fails to declare that there is an arbitration agreement when bringing a lawsuit to the people’s court, and the other party responds to the lawsuit and pleads after the people’s court accepts it, the people’s court shall be deemed to have jurisdiction.” Article 26 of the Arbitration Law of China also stipulates: “If the parties reach an arbitration agreement, and one party brings a lawsuit to the people’s court without stating that there is an arbitration agreement, and the people’s court accepts it, and the other party submits the arbitration agreement before the first hearing, the people’s court shall reject the lawsuit, except that the arbitration agreement is invalid; if the other party fails to raise an objection to the acceptance of the case by the people’s court before the first hearing, it shall be deemed to have abandoned the arbitration agreement, and the people’s court shall continue the trial.” It can be seen that the parties’ voluntary waiver of the arbitration clause can also constitute respondent jurisdiction, and this rule should also apply to foreign-related civil proceedings.
- Exclusive jurisdiction
Exclusive jurisdiction refers to cases closely related to the public policy of the place of court, which can only be exercised by the courts of the country where the court is located. Such as real right litigation and some non litigation procedures, such as probate procedures, inheritance cases, bankruptcy cases and compulsory disposal cases of real estate.
According to Article 246 of China’s civil procedure law, foreign-related civil cases that fall under the exclusive jurisdiction of China’s people’s courts include: Disputes over Sino foreign joint venture contracts performed in China; Disputes over Sino foreign cooperative enterprise contracts performed in China; Disputes over contracts for Sino foreign cooperative exploration and development of natural resources performed in China.
In addition, according to the theory and practice of private international law, the following cases should also be under the exclusive jurisdiction of the people’s Court: first, the litigation brought for real estate disputes should be under the jurisdiction of the people’s Court of the place where the real estate is located; Second, the litigation brought for disputes in port operation shall be under the jurisdiction of the people’s Court of the place where the port is located. However, the litigation brought for inheritance disputes is relatively complex, and it is generally not treated as exclusive jurisdiction.
- Differences between foreign-related agreement jurisdiction and domestic agreement jurisdiction
First, foreign-related cases can be governed by agreement in a wide range. The jurisdiction of foreign-related agreements can agree on the court of jurisdiction for both contract disputes and property rights disputes, while the jurisdiction of domestic agreements can only agree on the court of jurisdiction for contract disputes.
Second, the choice of court for foreign-related agreement jurisdiction is wider than that for domestic agreement jurisdiction. The jurisdiction of foreign-related agreements can choose the jurisdiction of Chinese people’s courts or foreign courts by agreement, while the jurisdiction of domestic agreements can only choose the jurisdiction of domestic courts by agreement.
Third, there are more types of foreign-related agreement jurisdiction than domestic agreement jurisdiction. There are two kinds of foreign-related agreement jurisdiction, express and implied, while there is only one kind of domestic agreement jurisdiction, express agreement jurisdiction.
