Research And Improvement Of Forum Selection Mechanism In China

The adoption of the 2005 Hague Convention on Choice of Court Agreements provides us with a great opportunity to study and improve the forum selection mechanism in international civil and commercial cases, which has remained unchanged for 17 years in China. First, we shall follow the Convention's example in respect of the application scope of the choice of court agreement, combining general rules and exceptional rules together. Generally, choice of court agreements can be applied in contractual disputes and property rights disputes involving foreign elements. Besides, the Civil Procedure Law shall exclude application of choice of court agreement to consumer contract, employment contract, property disputes involving statues, capacity and family law issues, and claims for personal injury.In respect of the formal validity, a jurisdiction agreement shall be validly concluded in writing or by other means of communications such as data message. Requirement on the specific connection with the chosen court shall not be removed but we can gradually relax the restrictions upon the parties'autonomy through judicial interpretation. As well, the choice of court agreement shall not violate regulations regarding internal allocation of jurisdiction among courts in China.A choice of court agreement shall be deemed to be exclusive unless the parties have expressly provided otherwise. A non-exclusive choice of court agreement designating courts of other States as the chosen court can not exclude the jurisdiction of competent courts of China, and in cases that one party brought the suits to a court of China, it could hear the case.Public policy reservation principle has been applied in many fields such as conflicts of laws, recognition and enforcement of judgments and international judicial assistance in China. It is also a very important principle in forum selection mechanism. The Civil Procedure Law shall explicitly stipulate that choice of court agreement shall not violate public policy of China. If a choice of court agreement choosing foreign courts violates the public policy of China, the agreement shall be invalid and courts of China could hear the case when one party brings the suit before it.The Supreme People's Court of China stipulated in one judicial interpretation that a court is not allowed to refuse hearing a case on the grounds of forum non conveniens if a valid jurisdiction agreement exits designating court of China as the chosen court. Such a rule shall also be added to the Civil Procedure Law of China.