On Consent Jurisdiction Under HCCH 2019 Hague Judgment Convention

On July 2 2019,the Hague Conference on Private International Law promulgated the Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters,became the first global international document to establish uniform rules for the international circulation of civil and commercial judgments.It systematically stipulates the scope and conditions for recognition and enforcement of foreign judgments in civil or commercial matters,filling the legislative gap in the field of recognition and enforcement of foreign judgments in civil or commercial matters.Article 5 under the Convention is the core content,Article 5.1 focuses on "basis for recognition and enforcement",provides 13 "jurisdictional filters".Among them,a total of 7 involve varying degrees of autonomy of will of the parties,including but not limited to bringing the claim,counterclaim,and agreement on the place of performance of contractual obligations.This set of review standards of recognition and enforcement based on the consent of the parties to the jurisdiction of the original trial court constitutes the consent jurisdiction under the Convention.International civil litigation typically involves parties from different countries.In the event of a domestic court exercises jurisdiction over international civil and commercial disputes,it will face the determination of jurisdiction,and later in the cross-border recognition and enforcement stage of judgments,it will also deal with the issue of whether jurisdiction can be recognized by other countries.Expanding the standards of jurisdiction review based on the consent of the parties can greatly broaden recognition and enforcement channels,and enhance the predictability of judgments circulation.The Convention provides a reference for China’s reform of jurisdiction system.However,there are also some concerns regarding the application of the consent jurisdiction under the Convention.Firstly,the lack of a unified and clear definition of certain terms under Convention can lead to different conclusions drawn by the original and requested countries based on their domestic standards when examining the same fact,bringing uncertainty to the circulation of judgments.Secondly,the homeward trend in the application of the Convention can undermines the uniformity of the Convention.Finally,the domestic legal system of China is partially different from the consent jurisdiction under the Convention,such as the jurisdiction governing the trust disputes,deserves to be adjusted and coordinated.Overall,the positive impact of the consent jurisdiction under the Convention on China outweighs the potential concerns.China should consider using this system as a reference to improve the jurisdiction system in foreign civil litigation.There are already systems such as agreement on choice of court and submission in China’s current legislation,but there are still differences compared to the consent jurisdiction under the Conventions,and there is still a legislative gap for certain situations that constitute consent.In the future legislation,China may consider the attempt to recognize the plaintiffs filing and the defendant’s explicit consent as jurisdictional basis.recognizing the applicable law of the contract agreed upon by the parties as one of the criteria for determining the place of performance of contractual obligations,reforming the jurisdiction covering trust disputes centered on the principal place of the administration of the trust with the premise of substantial connection.