On The Introduction Of The Principle Of Discretion To The Foreign-related Civil And Commercial Jurisdiction

The principle of discretion derives from so-called legal thought of “equity”, and so is the discretionary foreign-related civil and commercial jurisdiction. It is: after the application of one party: 1. the court could hear a case which is substantially connected to England but the defendant is not in England based on the discretionary jurisdiction; 2. the court could refuse to hear a case which is not substantially connected to England but the defendant is in England based on the discretionary jurisdiction. The 50 th article of "Model Law of private International Law of China” is concerning discretionary jurisdiction which lacks point 2. And I support there are no rules of jurisdiction in China due to significant distinction between domestic and international jurisdiction.This paper is divided into four chapters, focusing on the necessity and feasibility of the introducing of discretionary jurisdiction:The first chapter is concerning the conceptions of principle of discretion, foreign-related civil and commercial jurisdiction and the combination of the two.The second chapter tries to clarify the discretionary jurisdiction through the comparative study of discretionary jurisdiction and forum non conveniens, lis pendens and so forth.The third chapter with four sections is the necessity of introducing of discretional jurisdiction. Section Ⅰ and II reveals the legislation and practice status quo of jurisdiction and the benefits of discretional jurisdiction.Section III and IV elaborates the requirements of safeguarding citizens’ legitimate interests and national interest and sovereignty need discretionary jurisdiction.Chapter Four with four sections focuses on the feasibility to introduce discretionary jurisdiction. Section Ⅰ and II disclose the basis of discretionary jurisdiction in China and Section III indicates the recognition and enforcement of judgment is not an obstacle to introduce discretionary jurisdiction.