Jurisdiction agreements in Chinese conflict of laws: searching for ways to implement the Hague Convention on Choice of Court Agreements in China

Abstract

On 12 September 2017, China signed the Hague Convention on Choice of Court Agreements and its ratification is expected in the near future. An immediate issue arises as to how China should implement the Convention. This article is trying to find an answer to this question. Conducting an holistic and in-depth analysis of Chinese law and practice regarding jurisdiction agreements in foreign-related civil cases, and of their consistence with and divergence from the Convention, this article finds that Chinese practice treats foreign jurisdiction agreements in a different way than it does Chinese jurisdiction agreements, an actual connection requirement and prohibition against violation of Chinese courts’ exclusive jurisdiction are imposed on foreign jurisdiction agreements but not on choice of Chinese court agreements. Because of the requirement and prohibition, Chinese law regulating foreign jurisdiction agreements conflicts with the Convention. In addition, Chinese law also precludes parties to submit a purely domestic dispute to foreign courts. Therefore, despite several available options, the best way to implement the Convention in China should be a combination of mild changes to Chinese law and practice with finessed declarations to limit the application of the Convention.