| The aim of this research is to find the essence of jurisdiction in international civil cases.Obviously,the theory of jurisdiction in international cases differs from that of domestic ones.Differences and conflicts in the theories of foreign civil jurisdiction in various states exist,too.Clarifying the essence of international civil jurisdiction is related to the construction of the overall jurisdiction system and the design of specific jurisdiction rules.At present,the opposing voices of various countries to the long-arm jurisdiction of the United States are constantly heard,and the academic researching enthusiasm for the jurisdiction of the United States is also quite tense.Many legislative opinions and measures have been proposed to oppose it,but few people have delved into the bottom layer of the jurisdiction system to comprehensively analyze the theoretical essence and reveal the logic lying in its rules from a legal perspective.The research perspectives of domestic scholars are generally refined and specific,lacking in breadth;However,local American scholars are limited by their local researching atmosphere,and their underlying theories are commonplace or even overlooked.However,there is lack of foreign scholars standing from different perspectives to provide arguments and explanations from the overall level.This article mainly uses comparative analysis and historical analysis methods to prove the following viewpoint:the United States’ foreign civil jurisdiction system has to some extent demonstrated the development characteristics of "unilateralism",which on the one hand demonstrates its unique characteristics,and on the other hand,there are also many drawbacks.What is behind the jurisdictional system of "unilateralism" is the historical"power theory" or "domination theory" in American jurisdictional theory,reflecting a strong pragmatic color in the judicial tradition of the common law system.After reaching this conclusion and conducting an overall evaluation,my overall attitude is based on the assertion that the jurisdiction of foreign-related civil and commercial cases is about the distribution of power among the sub units of the legal system.The best way to distribute power is through a"multilateral" approach.Specifically,this paper is divided into six parts to gradually elaborate my opinion,including the introduction,four main argumentative chapters and a concluding chapter.The first part briefly introduces the main legal issues of the article,the background of the topic,and literature review.Chapter One,"The Proposal of ’Unilateralism’" provides a detailed discussion of the title and the research issue.After defining the scope and research object of this article,the author directly proposed the term "Unilateralism" and summarized the three connotations of"unilateralism" through an analysis of the development of American jurisdiction theory and practice.They are:1)determining jurisdictional courts starting from the jurisdictional sphere of courts themselves rather than the cases;2)showing manifest domestic style in international cases:3)jurisdictional court is not exclusive.The above characteristics and manifestations are derived from the analysis of the development of American jurisdiction theory and practice.Chapter One places the summary and connotation of "unilateralism" in the overall position of the article.Afterwards,this chapter discusses several theories of jurisdiction and also introduces the classification of jurisdiction rules in the United States.These jurisdiction rules represent different theoretical foundations in different historical periods and can also bring differentiated judicial outcomes to cases.Chapter Two,"Unilateralism in the Historical Evolution of the Jurisdictional Institution in the United States" analyzes the evolution of its system and underlying theories from typical historical cases.The author’s discourse is chronologically divided into two stages of theoretical development:"authoritarianism" and "theory of litigation justice".The territorial principle of jurisdiction allocation in the Pennoyer v.Neff case is the basic formula for the"authoritarianism" stage and makes it the grandfather case of the first stage.The theory of"authoritarianism" is based on the unilateral power scope of the jurisdiction court and has a strong unilateral attribute.Due to the strong "regional" judgement criteria for determining personal jurisdiction and object jurisdiction,in situations where the development of civil and commercial exchanges in society is relatively low,the jurisdiction referred to by "regional" is often single and exclusive to the court.At this stage,the jurisdiction rules appear particularly clear and definite.After the International Shoe v.Washington case in 1945,the"theory of litigation justice" gradually emerged on the historical stage.Judges are gradually implementing the formula of "minimum contact standards" to determine whether the court can exercise jurisdiction over the case.The International Shoe Case has proposed a valuable new standard for the claim of jurisdiction-the"litigation justice" standard,which applies not only to general jurisdictional norms before and after the event,but also to jurisdictional norms in special cases.The nominal "litigation justice" cannot perfectly achieve the fairness of litigation.The theory of the second stage has been adjusted on the basis of "authoritarianism",but only solves the problem of excessive strict exercise of power theory,without solving the problem of excessive broad exercise.The logical focus of the two stages of jurisdiction has always been vertical and unilateral.Chapter Three,"Unilateralism in the Universal Jurisdiction Institution in the United States ",presents the establishment and application of universal jurisdiction in the United States under the Alien Torts Act,despite the absence of clear provisions in international law.Compared to the indifferent attitude of many countries towards the application of this system,the United States’ approach is indeed rare.This chapter also compares and analyzes the long arm jurisdiction between universal jurisdiction and traditional civil and commercial jurisdiction.The two have significant theoretical similarities in essence-that is,breaking through the traditional jurisdictional basis of civil and commercial behavior,expanding.-the scope of courts that trigger jurisdictional mechanisms,which inevitably leads to easier jurisdictional conflicts.There are also differences in some factors between the two.Universal jurisdiction has also begun to be neglected by the United States since the Kiobel case in 2013,and is now largely neglected.This chapter is relatively short and serves as an auxiliary argument for the unilateral nature of the U.S,foreign jurisdiction system.Chapter Four,"The Constitution and Unilateralism in Civil Jurisdiction," presents the limitations.and impacts of the provisions of the U.S.Federal Constitution on.judicial jurisdiction,which is the longest and most fully justified part of this article’s argument.The multiple provisions in the Constitution,mainly the full integrity clause and the due process clause,do not change the basic logic of its power theory by limiting the application of the rules of American jurisdiction,while vividly shaping its unilateralism.Especially in the application of the due process clause,it can be seen that the judge has two views on the clause-the "expansive" view and the "restrictive" view.The difference between the two is which step of the jurisdictional rule is challenged by the provision-whether it is an unconstitutional challenge to the content of the state jurisdictional rule,or a practical challenge in recognition and enforcement after the judgment of the case.However,judicial practice has proven that there is no case that can have a clear standard and conclusion for the application of this clause.In history,the application of this provision has sometimes fluctuated between two viewpoints,and sometimes completely ignored its application.It can also be argued that the jurisdiction system of the United States is subject to the traditional style of common law case law,lacking systematic and standardization,but rather having a case by case,and even contradictory nature.The content of this chapter strengthens the argument for the unilateralism of the U.S.jurisdictional system.The next part of this chapter talked about the application in international cases",and discusses the contradiction between the unitary model in the judicial practice of U.S.jurisdiction and the dual model of sovereignty in constitutional design,in order to prove the irrationality of constitutional limitations on foreign-related cases.The distribution of jurisdiction in multinational countries involving foreign cases is subject to norms from the international order.After discussing the characteristics and many problems of the jurisdiction system of a perfect country in different chapters,the author changed research perspective in Chapter Five,and proposed the following conclusion:the answer to the harmonious jurisdiction rules of foreign-related civil and commercial cases may exist in the concepts of "cosmopolitanism"and"multilateralism".The ultimate goal of private international law is to build a legal order that coordinates international civil and commercial relations,in order to achieve the legal and social effects that the international community expects.The development of the jurisdiction system for foreign-related civil and commercial matters may draw inspiration from the multilateral approach of conflict of laws-giving full possibility to the extraterritorial application of civil and commercial law in a certain jurisdiction,and fully considering the jurisdiction possibility of courts in other countries when constructing jurisdiction rules.The methodology and ideas of "multilateralism" in conflict law not only showcase the ultimate charm of the department’s law,but also provide more inspiration for theoretical innovation and institutional construction of foreign-related rule of law.Comparing with China’s practice and institutional construction,applying"multilateralism" to the development and discussion of China’s jurisdiction system for foreign-related civil and commercial cases can become a key step in the integration and contribution of international private law to the rule of law related to foreign affairs.The construction of jurisdiction rules guided by "multilateralism" under the concept of power distribution would face some difficulties in future,but it can still serve as a legislative guide.The argument in this research is based on amount of English resources.The construction of a "multilateral" foreign jurisdiction system proposed by the author has certain idealism.Although it is in line with the development attitude and pace of contemporary China along-with the international community,new legislative methods and techniques still need to be further explored by academic colleagues. |
