Research On The Indirect Jurisdiction Of Convention On The Recognition And Enforcement Of Foreign Judgments In Civil Or Commercial Matters

The Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters(hereinafter “the Convention”)is a significant international legal instrument which is rather comprehensively establishing the unified rules for the circulations of judgments on transnational civil and commercial matters.It will bring about profound impact on development of international civil and commercial fields as well as international judicial cooperation.Competent Jurisdiction is the prerequisite and important basis of the recognition and enforcement of a foreign judgment.The Convention listed the proper legal basis for recognition and enforcement to in fact set up legal rules clarifying the issue of indirect jurisdiction.By analyzing the changes of those provisions on indirect jurisdiction in the previous drafts of the Convention and the present existing rules,the research on the indirect jurisdiction of the Convention can be further deepen,also significance will be revealed through relevant research on the improvement of domestic legislations of China.The structure of the thesis is as follows:The first section mainly introduces the definition and development of the indirect jurisdiction in the Convention.The concept of indirect jurisdiction sets up a standard for the domestic court to evaluate whether or not a foreign court correctly exercises jurisdiction.The first paragraph of Article 5 of the Convention sets out thirteen jurisdictional bases,the second paragraph is a special provision on the issue of consumer contracts and employee’s contracts,while the third paragraph of Article 5 and Article 6 together govern issues on immovable property.In the previous revisions of the drafts,some of the jurisdictional basis are gradually added,refined,and deleted,especially for the text of the jurisdictional basis on issues including intellectual property,immovable property and tenancy,which have always been the focus of attention and controversy.The second section is to sort out and analyze the general rules of indirect jurisdiction of the Convention.The structure of the first paragraph of Article 5 of the previous drafts remain unchanged as listing the proper legal basis.The adopted paragraph 1 of Article 5 of the Convention contains total 13 jurisdictional grounds belonging to three traditional jurisdictional categories: jurisdiction based on connections with the defendant,jurisdiction based on consent and jurisdiction based on connections between the claim and the State of origin.The thesis also follows the structure of the Convention,regards these three traditionalcategories of jurisdiction basis as the general rules of indirect jurisdiction of the Convention,elaborating on the evolution,existing provisions and reviews.The third section is to sort out and analyze the special stipulations of indirect jurisdiction of the Convention.The second paragraph of Article 5 is a special provision which takes precedence over the application of first paragraph of Article 5,and Article 6 is the stipulations on exclusive jurisdiction.Thus,the thesis is structured following the arrangements of the Convention,regarding paragraph 2 of Article 5 and Article 6 as special provisions for indirect jurisdiction,discussing the rules of jurisdiction concerning immovable property,consumer contracts and employee’s contracts,anti-trust(anti-competition)by elaborating on the evolution,existing provisions and reviews.The fourth section is the evaluation of the indirect jurisdiction rules of the Convention also its inspiration for China’s legislation.In general,it is considered that some limitations might hinder its wide application,that the scope of its rules is rather narrow,unclear expressions are prone to causing controversy,also the excessive declarations of exclusions on many specific matters.In view of this,China can follow up on the research of indirect jurisdiction rules of the Convention in depth and breadth,find proper timing to propose to build a platform to improve the understanding of different judicial systems among countries and comprehensively analyse China’s exclusive jurisdiction basis.Although inherent shortcomings exist in the indirect jurisdiction rules of the Convention,its greatest contribution is on changing the situation of segmentation rather than comprehensively listing all possible indirect jurisdiction basis.It also provides new ideas and potential solutions for deciding requirements of competent jurisdictions,which is a major problem in the recognition and enforcement of foreign judgments.On the basis of reviewing China’s provisions on the recognition and enforcement of foreign judgments,it should be considered that the current legislation on the issue of jurisdiction of China’s Civil Procedure Law still regulates direct jurisdiction and do not involve any indirect jurisdiction rules.Therefore,taking the indirect jurisdiction rules of the Convention as a blueprint,discussing China’s future indirect jurisdiction legislations and improving the indirect jurisdiction rules in judicial cooperation treaties ought to be China’s efforts to promote a “rule of law” based business environment,deepen the “Belt and Road” initiative and establish a community with a shared future for mankind.