A Study On The Recognition And Enforcement Of Common Courts Judgments

The common court provision is a key clause with debate among states during the negotiation of the Hague Judgments Convention,and also an emerging hot issue in private international law.The definition of the common court in this paper is mainly based on the international legal instruments such as working documents,notes and reports on the common court clauses in the negotiation process of the Hague Judgments Convention.The term “Common Court” refers to a court that is empowered by two or more States,by agreement or by unilateral act,to transfer the jurisdiction of the domestic courts.The court exercises jurisdiction over private international law matters according to founding treaties and makes judgments on the merit.The common courts studied in this paper is limited to the 8 common courts identified in the “Note on ‘Common Courts’ in Article 22 of the February 2017 Draft Convention”.The common courts can be divided into:(i)Appeal-type common courts and “First instance + appeal” type common courts according to their jurisdiction;(ii)incomplete-substitute common courts and complete-substitute common courts based on the relationship between the domestic courts and the common courts;(iii)international-organization-type common courts,international-agreement-type common courts and unilaterally established common courts based on the mode of establishment.For the appearance,the common court has diversified characteristics.For the essence,the common court is international with judicial functions.For the dispute settlement,the common court has the mandatory jurisdiction over the civil and commercial matters;the presupposition of procedure and the finality of the judgment.The common court is a historical product of the court’s development to a certain stage and will continue to develop.The Judicial Committee of the Privy Council is the early bud of the common court.After World War II,Europe,Africa,South America,Latin America and other regions have set up common courts in their own regions.The modern development of the Common Court is mainly reflected in the establishment of the Unified Patent Court and the modernization of the Benelux Court of Justice.The private international law features of the two common courts have become more obvious after the adoption of Regulation(EU)No 542/2014 of the European Parliament and of the Council of 15 May 2014 amending Regulation(EU)No1215/2012 as regards the Rules to be Applied with respect to the Unified Patent Court and the Benelux Court of Justice.The cause of the common court is highly coincident with the scope of its function,and often the area where the common court functions.Moreover,with the continuous improvement of the common court rules,the functions of the common court gradually also turns multiple.For the judicial function,the common court is one of the ways to solve transnational disputes.For the function of regional governance,the common court originates from regional integration and promotes the development of regional integration.There are differences and connections between recognition and enforcement of foreign judgments and recognition and enforcement of common court judgments.Common court judgment is a part of the concept system of private international law,which forms the complete content of private international law together with domestic court judgment.The judgment of the common court shall:(i)be made by the common court;(ii)be made on the merit of the dispute in and meet the form requirements;(iii)redefine the “court of origin” when recognizing and enforcing the judgment of the common court.The common court judgment has only provisions for enforcement in the contracting states,but no provision for recognition.It is mainly enforced in the contracting states according to the founding treaties and the domestic laws of the contracting states.According to the different natures,there are two different enforcement modes of the common court judgment,namely,the domestic judgment mode and the foreign judgment mode.The unilaterally established common court judgment is considered to be the final judgment of the court of the contracting state,so it can be directly enforced in the contracting state.The enforcement of the international-agreement-type common court can only be carried out in the contracting states after meeting the above three conditions.In theory,international-organization-type common courts judgments can be enforced through the enforcing agencies of international organizations,but in practice judicial enforcement is still the main method.In addition,the common court judgment may also be recognized and enforced in other states within the regional integration organization that generated the common court.The recognition and enforcement of common court judgments in other states are mainly constructed and perfected in the negotiation process of The Hague Judgments Convention.During the negotiation of the Convention,the special commission of The Hague Judgment Project,together with other states,put forward two versions of the draft common court.Although the global recognition and enforcement rules of the common court judgment finally went bankrupt,still in-depth discussions around the key issues,such as transparency,declaration and reciprocity were conducted.The Common Court is one of the most likely options for China to establish an“The Belt and Road Initiative” international commercial dispute settlement mechanism and institution.For the mode choice of establishing a common court,China should take the initiative to establish an international-agreement-type common court and actively participate in an international-organization-type common court,but it should not choose the unilaterally established common court.For the region choice,China can choose the states along the “The Belt and Road Initiative” route and the western border trade areas as the regional scope.For the choice of theory,China shall adhere to the international delegation theory,the principle of “Consultation,Contribution and Shared Benefits” and the theory of international legal community.For the choice of function,the common court should effectively balance the competitiveness and service of the dispute settlement mechanism.The recognition and enforcement of the common court judgment strongly and mutually interact with China’s private international law.China not only slows down the entry of common court provisions into the Convention,but also actively proposes a new plan for the positioning of common court provisions in the Hague Judgment Convention.The common court has upgraded judicial competition to the regional level,which not only forces China to reform its international civil procedure law,but also makes possible judicial cooperation between China and other states.In addition,the special system of recognition and enforcement of common court judgments also supplements the recognition and enforcement system of foreign judgments at the micro level.