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The earliest formal legislation of private international law is embodied in the 1982 Civil Procedure Law (for trial implementation) (Minshi Sousongfa (Shixing)). No special provision on international jurisdiction could be found in that statute. It has since been replaced by the Civil Procedural Law (Minshi Sousongfa, 1991). Unless otherwise stated, the rules under consideration in the present study are those contained in the latter. The choice-of-law rules are mainly integrated into the General Principles of the Civil Law (Minfa Tongzhe), which came into force on 1 January 1987. It contains nine articles in its 8th chapter entitled ‘Applicable Law for Civil Relations Involving Foreign Elements’. For an introduction to those rules in English, see Huang Jin, The Structure of China’s Conflicts Law: New Development of the Rules on Special Commercial Law, in 45 NILR (1998) p. 188.
It should be noted that these interpretations are not legislation in the strict sense (some Chinese jurists call them ‘quasi-legislation’) nor is the Chinese Supreme Court empowered to make law.
China has thus far not yet concluded any bilateral treaty or ratified any multilateral convention dealing with direct international jurisdiction.
See Art. 237 of the Civil Procedural Law
Although China has a single legal regime, the parties to a purely domestic contract may also choose a court to settle their dispute. Art. 25 of the Civil Procedural Law stipulates: ‘To resolve their dispute, the parties to a contract may choose the court at the place of the defendant’s domicile, or the place of the performance of the contract, or the place of the conclusion of the contract, or the place of the plaintiffs domicile, or the place where the object of the contract is located. But the provisions on exclusive jurisdiction and those designating the particular court in the judicial hierarchy shall not be violated.’
Tacit choice of court is also referred to as general appearance, appearance as defendant, unconditional or voluntary appearance, or simply appearance. Cf., for example, E.F. Scoles and P. Hay, Conflict of Laws (St Paul, Minn., West Publishing Co. 1992) p. 276 (appearance), Art 6 of the Swiss Statute of Private International Law (unconditional appearance), and section 33 of the US Restatement, Second, Conflict of Laws and the relevant comments (appearance as defendant and general appearance).
See Black’s Law Dictionary, 6th edn. (St Paul, Minn., West Publishing Co. 1990) p. 682.
Unlike choice-of-fotum clauses, this basis is not accepted for the domestic contract disputes by the Civil Procedural Law.
Cf., para. 305 of the 1992 Opinions. For the contents, see infra n. 33.
In other statutes, there are also some provisions of private international law. For example, Art 5 of the Law on Economic Contracts Involving Foreign Parties (Shewai Jingji Hetong Fa, 1985) concerns the choice of law. Another example is the Law on Inheritance (Jichengfa, 1985), Art. 36 of which concerns the applicable law of inheritance involving foreign elements.
Art. 15 of the General Principles of the Civil Law stipulates that ‘[t]he domicile of a citizen shall be the place where his residence is registered; if his habitual residence is not the same as his domicile, his habitual residence shall be regarded as his domicile.’ It should be noted that in this article, the term ‘habitual residence’ does not have exactly the same meaning as it is interpreted and employed by the Supreme Court in the interpretations of the Civil Procedural Law and the General Principles of the Civil Law (see infra nn. 26-27 and the accompanying text). It only means ‘the place where a person resides very often’ but not ‘habitually’.
Cf., para. 4 of the 1992 Opinions.
See Ait. 2(1 )-(2) of the Regulations on the Registration of Residence (Hukou Dengji Tiaoli, 1958).
Ibid, Art. 3(3).
Ibid., Arts. 6-7.
If those requirements are not satisfied, the person in issue cannot change his domicile. In consequence, a number of persons reside in a place where they do not have a domicile, which is why the concept of habitual residence has been introduced into Chinese law.
Ibid., Arts. 10-13.
This is a decisive factor for the determination of a physical person’s domicile in most other countries.
See Art. 2(3) of the Regulations on the Registration of Residence, Arts. 2 and 13 of the Regulations on the Exit and Entry Administration of Foreigners (Waiguoren Chu Ru Jing Guanli Fa, 1985), and Arts. 16 and 18 of the Detailed Rules for the Implementation of the Regulations on the Exit and Entry Administration of Foreigners (Waiguoren Chu Ru Jing Guanli Fa ShishiXize, 1986).
See Art 14 of the Regulations on the Exit and Entry Administration of Foreigners.
See infra nn. 26-27 and the accompanying text
The contents of this article are similar to those of Art 237 of the Civil Procedural Law. See supra n. 5 and the accompanying text.
Cf, supra section 2.1.
See supra n. 5 and the accompanying text.
See para. 5 of the 1992 Opinions, and para. 9 of the Opinions of the Supreme People’s Court Regarding Several Questions on the Implementation of the General Principles of the Civil Law ‘for trial implementation’ (Zhuigao Renmin Fayuan Guanyu Shiyong ‘Zhonghua Renmin Gongheguo Minfa Tongzhe’ Ruogan Wenti De Yijian ‘shixing’, 1988).
Ibid.
See para. 9 of the Opinions of the Supreme People’s Court Regarding Several Questions on the Implementation of the General Principles of the Civil Law ‘for trial implementation’.
Cf., Chai Fabang, China’s Civil Procedural Law (Zhongguo Minshi Sousong Faxue) (Beijing, The Public Security University China Press 1994) p. 311, and Liu Jiaxin, A General Course on Civil Procedural Law (Minshi Sousong Faxue Jiaocheng) (Beijing, Beijing University Press 1994) p. 169.
Cf., Chai Fabang, op. cit. n. 29, and Liu Jiaxin, op. cit. n. 29, at p. 172.
An English translation of this Law has been published in 13 (4) China Law and Practice (1999) pp. 19-82. It was promulgated on 15 March 1999 and will become effective as of 1 October 1999.
Cf., Art. 244 of the Civil Procedural Law. For the concrete provisions of exclusive jurisdiction, see supra 2.4.
Cf., para. 305 of the 1992 Opinions, which stipulates: ‘An agreement or clause in writing conferring jurisdiction on a foreign court shall have no legal force if the Chinese courts whose jurisdiction they purport to exclude have exclusive jurisdiction by virtue of Arts. 34 and 246 of the Civil Procedural Law. But those conferring jurisdiction on arbitration organs are excluded.’
Ibid. The Chinese courts are divided into four levels (from higher to lower): the Supreme Court (located in the national capital), High Courts (located in the capital of each province, autonomous region and municipality), Intermediate Courts (located in larger cities and districts), and Lower Courts (in each county and small city).
Until now, the Supreme Court has exercised such jurisdiction only once. It was a criminal case, i.e., the trial of the so-called ‘Gang of Four’ and their followers in 1981. If the Supreme Court serves as a court of first instance, its decision is final.
The parties cannot select the appeal court, which is provided for by law and cannot be altered.
The rules regarding the allocation of jurisdiction of first instance are stipulated in Arts. 18-21 of the Civil Procedural Law.
See Art. 244 of the Civil Procedural Law.
Cf., Art. 25 of the Civil Procedural Law.
Cf., for instance, Art. 5(2) of the Swiss Statute of Private International Law, para. 2(aX3) of the US Model Choice of Forum Act, and Art 4(1) of Mercosur’s (Argentina-Brazil-Paraguay- Uruguay) Protocol of Buenos Aires on International Jurisdiction in Disputes Relating to Contracts, done at Buenos Aires, on 5 August 1994.
Cf., Art. 4 of the General Principles of the Civil Law and Art. 3 of the Law on Economic Contracts Involving Foreign Parties.
See infra section 4.
See Ait 248 of the Civil Procedural Law. The period is IS days if the defendant is domiciled within the country (Art. 113 of the Civil Procedural Law)
Cf., Tang Dehua, et al., Annotations to the Provisions of the New Civil Procedure Law (Xing Minshi Susongfa Tiaowen Shiyi) (Beijing, The Publishing House of the People’s Courts 1991) pp. 410–411, Jiang Wei, Commentaries, Comparison and Application of the Civil Procedural Law (Minshi Susongfa Shiyi Xingjiu Fatiao Duibi Shiyong) (Beijing, China Publishing House 1991) pp. 390-391, and Wang Baofa and Guo Shenggui, eds., How to Litigate Civil Disputes (Zhenyang Daying Minshi Guansi) (Beijing, Law Publishing House 1993) pp. 9-10.
In purely domestic cases, however, the defendant usually objects to the court’s jurisdiction and answer to the complaint at the same time if he thinks the court has no jurisdiction. But tacit choice of court is not an available basis of jurisdiction in domestic litigation.
This principle has not been changed since Hong Kong was handed over to the People’s Republic of China in 1997.
For more information about the case, see Gazette of the Supreme Court of the People’s Republic of China (Zhuigao Remin Fayuan Gongbao), No. 2,1992, p. 28.
It takes only a few hours by train or by car from Hong Kong to Guangzhou.
The case suggests that tacit choice of court as a jurisdictional ground may be helpful in cases like the present one. Parties from the same region may really agree to settle their dispute in a neighboring foreign court, specially if they speak the language of the forum, have similar cultural background, and are familiar with the forum community.
This is, however, just one of the principal reasons for which the rule of place of performance has been blamed by many prominent scholars. For instance, a number of experts from the Hague Special Commission for the proposed Hague Judgment Convention have criticized the rule of place of performance for this reason. See Hague Conference on Private International Law, Preliminary Document No. 8, November 1997, para. 65. Professor P. Volken contends that this rule ‘gets almost the character of an exorbitant form.’ See P. Volken, in: ‘The Lugano Convention in the Framework of Legal Unification in Europe’, in M. Carpenter, et. al., The Lugano and San Sebastian Conventions (London, Butterworths 1990) p. 9.
Evidently, it is the economically stronger party who may dominate the choice. At present, those foreign persons who are engaged in contracts with Chinese parties have, in most cases, stronger bargaining power than their Chinese counterparts. When in China, the present author had been invited to review some foreign-related contracts. In all of these contracts, foreign substantial laws and forums (including foreign arbitral tribunals) were selected.
This may be one of the reasons for the contracting states of the Mercosur’s Protocol of Buenos Aires on International Jurisdiction in Disputes Relating to Contracts to adopt the plaintiffs domicile as a subsidiary basis in certain circumstances. In that treaty, the plaintiffs domicile plays almost a similar role as the defendant’s domicile. See Art 7 of the said Treaty.
Cf, Art 24 of the Civil Procedural law, which prescribes that ‘[a] lawsuit concerning contract dispute shall be brought either in the court of the place of the defendant’s domicile or in the court of the place of performance.’
Cf., for example, Tang Dehua, op. cit. n. 44, at p. 37, Liu Rifii, A General Course of Contract Law (Hetongfa Tonglun) ( Beijing, The Masses Publishing House 1994) pp. 67-68, and Li Youyi, Civil Law (Minfaxue) (Beijing, Beijing University Press 1994) p. 318.
Besides the two laws on contract, there are some other laws and regulations governing several types of specific contract. A uniform contract law is nevertheless under preparation and is expected to be promulgated in the near future. Cf., supra n. 31.
See Arts. 7 and 12 of the Law on Contract Concerning a Foreign Element, and Arts. 3 and 12 of the Economic Contract Law.
See, Art. 88, section 1(3) of the General Principles of the Civil Law.
Cf., The Supreme Court’s Answer to the Question of How to Determine the Place of Performance of a Loan Contract (Zuigao Renmin Fayuan Guanyu Ruhe Queding Jiekuan Hetong Luxingdi De Pifu), made on 17 November 1993, in Gazette of the Supreme Peoples’ Court of the People’s Republic of China, No. 4,1993, p. 156.
Cf., The Supreme Court’s Answer to the Question of How to Determine Place of Performance (Zuigao Renmin Fayuan Guanyu Ruhe Queding Hetong Luxingdi De Pifu), made on 22 April 1988, in Gazette of the Supreme Peoples’ Court of the People’s Republic of China, No. 2,1988, p. 40.
See, Art. 88, section 1(3) of the General Principles of the Civil Law.
Cf.,Art. 17 of Japanese Code of Civil Procedure.
Cf., K.H. Nadelmann, Conflict of Laws: International and Interstate (The Hague, Nijhoff 1972) pp. 328–330.
Cf., for example, Art. 3 of both the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters and the Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, where the relevant rules in some of their contracting states are deemed exorbitant. See also Hague Conference on Private International Law, Preliminary Document 8, November 1997, para. 85.
Cf., for instance, the official Report to the Lugano Convention, Art. 3.
Cf., Tang Dehua, et al., n. 44, and Ma Yuan, Analysis to the Application of the Civil Procedural Law (Minshi Sousong Fa Shiyong Yijian Chanshi) (Beijing, China Press of the Public Prosecutors 1994) p. 30.
For its contents, see supra section 2.4.
Cf., para. 305 of the 1992 Opinions. For details, see supra n. 33.
This statute contains a provision dealing with this matter in domestic litigation. According to its Art. 35, if two or more Chinese courts have jurisdiction over a lawsuit, the plaintiff may bring his action in one of these courts. If the plaintiff initiates his action in two or more courts that have jurisdiction over the action, the court in which the case was first entertained shall have jurisdiction. This article, however, fails to regulate the situation where one party brings his action in one court while his adversary files a second action in another.
See, para. 306 of the 1992 Opinions. See also, Ma Yuan, op. cit. n. 65, at pp. 217-218. In a lis pendens situation, after the rendition of a Chinese judgment, the other judgment pronounced by the foreign court will not be recognized or enforced in China, unless the treaties concluded or acceded to by both China and the foreign country concerned stipulate otherwise. Ibid.
Cf., J.J. Fawcet, Declining Jurisdiction in Private International Law (Oxford, Clarendon Press 1995) p. 28.
Cf., para. 306 of the 1992 Opinions.
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I wish to thank Professors Walter A. Stoffel, A.E. von Overbeck, Harro von Senger and Ms Annemie Jv Rensburg for their valuable comments on an earlier draft. My thanks also go to Professors Pierre Widmer and Bertil Cottier, the Director and Deputy Director, Swiss Institute of Comparative Law, for their continued support The author is indebted to Mr Hans Uli Ammann, Dr Jacques Barman, Dr Marc Ronca, Mr Christian Girod, Dr Hans-Ulrich Müller and Mr Ernst Koller.
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Zhenjie, H. International Jurisdiction of Chinese Courts in Contractual Matters: Rules, Interpretation and Practice. Neth Int Law Rev 46, 204–225 (1999). https://doi.org/10.1017/S0165070X00002400
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DOI: https://doi.org/10.1017/S0165070X00002400