Study On The Jurisdiction Conflicts Of Litigation And Arbitration Over Coincidence Of Contractual And Tortious Liabilities Cases With Foreign-related Elements

Arbitration and litigation are two main channels of settling civil and commercial disputes with foreign elements. As an alternative dispute resolution mechanism, arbitration has been increasingly widely chosen as the dispute resolution method by parties to the commercial contracts. Arbitration has the advantages in terms of execution and maintaining Party Autonomy. More and more people choose and accept arbitration to settle their disputes. However, the number of cases involving the concurrence of contractual liability and tortuous liability is rising. How to deal with this kind of cases in International Law has become a common issue faced with the judicial practice of China and other countries.In the current judicial practice, the parties that seek profits in such cases lead to some legal questions, exactly the extent to which the arbitration agreement can bind the parties if one of them chooses the tort cause of action and whether this can breaks the binding arbitration agreement. Besides, under the premise of the existence of a valid arbitration agreement, whether coincidence of contractual and tortious liabilities cases can be resolved by arbitration.This paper is divided into four chapters, the main contents are as follows: In the first chapter, the author introduces the examples of judicial practice, describes the merits of the cases in detail. and extracts opinions of the Supreme Court. Besides, the author tries to clarify the concepts of Concurrence between liability for breaching contract and tort.The second chapter presents an analysis of rules applicable to judicial review in coping with the conflict of arbitration jurisdiction and court jurisdiction in light of the application of law and adjudicating construction of arbitration agreements. this paper draws a conclusion that the arbitration agreement should not be adjudged invalid easily.In the third chapter, the author introduces foreign experience in the settlement of cases involving joint jurisdiction through litigation and arbitration, such as American, the United Kingdom and France.In the last chapter, Considering the problems in our country in dealing with such disputes and the fact that arbitration is encouraging as a effective dispute resolution mechanism in the world, the author put forward the suggestion that the court should adopt in dealing with the concurrence of liabilities cases with foreign-related elements. Firstly, The court shall respect the parties’ autonomy and validity of arbitration agreement. Secondly, Review the relevance between the disputes and the contracts, the disputes arise out of the contract and fall within the scope of the parties agreement to arbitrate, then determine whether a case shall be subject to the jurisdiction of a court or an arbitral tribunal. Thirdly, Sufficient connection to the contract is necessary to determine whether the dispute is within the scope of the agreement.