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EFFECTIVENESS OF EXCLUSIVE JURISDICTION CLAUSES IN THE CHINESE COURTS—A PRAGMATIC STUDY

Published online by Cambridge University Press:  06 June 2012

Zheng Sophia Tang
Zheng Sophia Tang
Affiliation:
BA, LLM, PhD. Senior Lecturer, University of Leeds, z.tang@leeds.ac.uk.
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Abstract

Chinese judicial practice demonstrates great diversity in enforcing exclusive jurisdiction clauses. In practice, the derogation effect of a valid foreign jurisdiction clause is frequently ignored by some Chinese courts. It may be argued that these Chinese courts fail to respect party autonomy and international comity. However, a close scrutiny shows that the effectiveness of an exclusive jurisdiction clause has close connections with the recognition and enforcement of judgments. If the judgment of the chosen court cannot be recognized and enforced in the request court by any means, the request court may take jurisdiction in breach of the jurisdiction clause in order to achieve justice. Chinese judicial practice demonstrates the inevitable influence of the narrow scope of the Chinese law in recognition and enforcement of foreign judgments. It is submitted that the Chinese courts do not zealously guard Chinese jurisdiction, or deliberately ignore party autonomy and international comity. Instead, the Chinese courts have considered the possibility of enforcement of judgments and the goal of justice. Applying the prima facie unreasonable decision test is the best the courts can do in the specific context of the Chinese law. The status quo cannot be improved simply by reforming Chinese jurisdiction rules in choice of court agreements. A comprehensive improvement of civil procedure law in both jurisdiction rules and recognition and enforcement of foreign judgments is needed.

Keywords

jurisdictionchoice of court agreementChinese courtrecognition and enforcement of judgment
Type
Article
Information
International & Comparative Law Quarterly , Volume 61 , Issue 2 , April 2012 , pp. 459 - 484
Copyright
Copyright © British Institute of International and Comparative Law 2012

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References

1 See the Hague Convention on Choice of Court Agreements 2005, art 3(a); Clarkson, C, J Hill, The Conflict of Laws (4th edn, OUP, Oxford, 2011)Google Scholar, 77; Kruger, T, ‘The 20th Session of the Hague Conference: A new Choice of Court Convention and the Issue of EC Membership’ (2006) 55 ICLQ 448–9CrossRefGoogle Scholar.

2 See eg the Regulation (EC) No 44/2001 on jurisdiction and recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation), art 23(1). For the English common law, see The Eleftheria [1970] P 94; Aratra Potato Co Ltd v Egyptian Navigation Co (‘The El Amria’) [1981] Lloyd's Rep 119, CA. US case: Bremen v Zapata Off-Shore 407 US 1 (1972). Canada case: Z.I. Pompey v ECU-Line NV 2003 SCC 27.

3 Liu, Liwen, ‘On Improvement of International Civil Jurisdiction in China’ (2009) 32 Journal of Yantze University (Social Sciences) 44Google Scholar; Hu, Zhengjie, ‘International Jurisdiction of Chinese Courts in Contractual Matters; Rules, Interpretation and Practice’ (1999) 46 NILR 216Google Scholar; Tu, Guangjian, ‘The Hague Choice of Court Convention—A Chinese Perspective’ (2007) 55 AmJCompL 360Google Scholar.

4 PRC Civil Procedure Law 1991, arts 25 and 244, adopted at the Fourth Session of the Seventh National People's Congress and promulgated by Order No 44 of the President of the People's Republic of China on April 9, 1991. This was the first time that party autonomy was adopted in the Chinese law. Prior to the 1991 PRC Civil Procedure Law, the PRC Civil Procedure Law (for Trial Implementation) 1982 did not include a provision allowing the parties' the right to choose the competent court. For a general introduction to the Chinese civil procedure law and source of law, see Zhang, Mo, ‘International Civil Litigation in China: A Practical Analysis of the Chinese Judicial System’ (2002) 25 BCIntl&CompL Rev 59Google Scholar.

5 HB Wang, ‘Explanation on the Civil Procedure Law of the People's Republic of China (for Trial Implementation)(Amendment Draft)’, the 4th Meeting of the Seventh NPC, 2 April 1991, section 2.

6 The PRC Civil Procedure Law 1991 was amended in 2007 by the Decision of the Standing Committee of the National People's Congress on Amending the Civil Procedure Law of the People's Republic of China, adopted at the 30th Meeting of the Standing Committee of the Tenth NPC October 28, 2007 and promulgated by the Order of the President No 75. It entered into effect from 1 April 2008. The law that is currently in force is the PRC Civil Procedure Law 2007. The translation of statutes in the article is available at the National People's Congress, the Database of Laws and Regulations <www.npc.gov.cn/englishnpc/law/Integrated_index>.

7 Min Ye (HK) v Liaoning Property Supreme People's Court [1996] No 158; Zheng v Weifu Transport Guangzhou Maritime Court (2005) No 267 (two exclusive jurisdiction clauses choosing US courts and English courts respectively are invalid because these two places have no connections to the dispute); SBF (Korea) v Teng (Beijing) Beijing Municipal High People's Court, (2005) No 98 (parties choose two alternative fora).

8 The Sumitomo Bank Ltd v Xinhua Estate, Supreme People's Court, (1999) No 194 (the parties chose the law applicable to the loan agreement which the Supreme People's Court used to interpret the meaning and to decide the validity of the choice of court agreement).

9 See English cases Fiona Trust v Privalov [2007] 4 All ER 951; Heyman v Darwins [1942] AC 356; MacKender v Feldia AG [1967] 2 QB 590. Brussels I cases: Case C-269/95, Benincasa v Dentalkit [1997] ECR I-3767. US cases: Robert Lawrence v Devonshire Fabrics 271 F.2d 402 (CA2 1959); Watkins v Hudson Coal 151 F.2d 311 (3 Cir 1945); Petition of Prouvost Lefebvre 102 F.Supp 757 (1952); Haynsworth v Corporation, 121 F.3d 956, 964 (C.A.5 (Tex) 1997). Nygh, P, Autonomy in International Contracts (Clarendon Press, Oxford, 1999)Google Scholar, 79; Briggs, A, Agreements on Jurisdiction and Choice of Law (OUP, Oxford, 2009) 62–106Google Scholar.

10 Although severability does not necessarily mean different applicable law must be applied to jurisdiction clauses and underlying contracts, most Chinese courts believe jurisdiction clauses are ‘procedural’ and should be subject to different law from the substance. For more details, see the accompanying text to notes 13–15.

11 Nevertheless, the doctrine of severability is widely used in Chinese judicial practice and is accepted in many academic writings. See, eg. Shandong Jufeng v Korea MGame, Supreme People's Court, (2009) No 4; Shandong Province High People's Court, ‘Several Opinions about Disputes on Jurisdiction in Civil and Commercial Matters’, (2006) No. 41, art 16; Ding, Wei, ‘On the Perfection in the Legal System of China's Jurisdiction over Foreign Civil and Commercial Disputes’, (2006) 24 Journal of China University of Political Science and Law 152, 160Google Scholar; Liu, Weiguo, ‘Independence of Jurisdiction Clauses in International Civil and Commercial Matters’ (2002) 28 Studies in Law and Business 104Google Scholar.

12 Supreme People's Court, ‘Interpretation of the Supreme People's Court concerning Some Issues on Application of the Arbitration Law of the People's Republic of China’ (‘Interpretation 2006’), [2006] No 7, art 16: the parties could agree on the applicable law to decide the validity of an arbitration clause; in the absence of such a choice, the law of the agreed place of arbitration should apply; if the parties do not agree on either the applicable law or the place of arbitration, the lex fori should apply.

13 Shandong Jufeng v MGame (n 11); Supreme People's Court, ‘Annual Report of Intellectual Property Cases in the Supreme People's Court (2009)’, [2010] No 173, case 44.

14 Shandong Jufeng v MGame (n 11). In a few cases, the Chinese courts have confirmed that jurisdiction and procedure is decided by the PRC Civil Procedure Law and the substance is decided by the choice of law in the GPCL: see the Supreme People's Court, ‘Answers to economic disputes relating to Hong Kong or Macau’, [1987] No 28, art 3(1) and (2); Guangdong Province High People's Court, ‘Notice on Issues about Deciding the Five Intermediate People's Courts of Guangzhou Municipality on the Territorial Jurisdiction and Jurisdiction by Forum Level on Civil and Commercial Matters Relating to Hong Kong and Macau’, [2002] No 191, art 13; China Point Finance Ltd v Zhuhai City Commercial Bank, Guangdong Province High People's Court, (2004) No 263; Zhongshan Shishen v Auli, Guangdong Province High People's Court, (2004) No 239. Nygh (n 9), 83.

15 Supreme People's Court, ‘Rules of the Supreme People's Court on the Relevant Issues concerning the Application of Law in Hearing Foreign-Related Contractual Dispute Cases in Civil and Commercial Matters’, [2007] No 14, art 1 provides that the applicable law to contracts refers to the substantive law and does not include procedural law.

16 In the EU, since the Brussels I Regulation does not provide material validity to a jurisdiction clause, some Member States use national law, including choice of law, to decide material validity. See Hess, B, Pfeiffer, T and Schlosser, P, Report on the Application of Regulation Brussels I in the Member States (‘Heidelberg Report’)Google Scholar, Study JL S/C4/2005/03, Sept 2007, para 377; Austrian case, 7 Ob 320/00k, ZfRV 2001/71 = RdW2001/678; 7 Ob 38/01s, RdW 2001/676 = ÖRZ-EÜ 2001/70 =ZfRV 2001/63 = ecolex 2002, 420 = ELF 2001, 431; 5 Ob 130/02g; Parenti, ‘Internationale Gerichtsstandsvereinbarungten: Lex fori oder lex causae Anknüpfung?’, (2003) ZfRV 221. National Report Austria (Oberhammer/Domej), Study JLS/C4/2005/03. Also compare the applicable law to an arbitration agreement in Supreme People's Court, Interpretation 2006 (n 12), art 16. See Briggs (n 9), 66–70; Nygh (n 9), 83.

17 It is adopted in most Chinese courts and consistent with practice in many other countries. See eg English cases; The Sumitomo Bank v Xinhua Real Estate (n 8); Continental Enterprises Limited v Shandong Zhucheng Foreign Trade Group Co [2005] EWHC 92 (Comm) (applying the lex causae to decide the illegality of a jurisdiction clause); Mackender v Feldia [1967] 2 QB 590; Astrazeneca v Albemarle International [2010] 1 CLC 715 (applying the lex causae to decide the validity of jurisdiction clause and also separability of jurisdiction clause).

18 See infra subsections II.B–D for more details on the restrictive requirements of jurisdictions agreements in Chinese law.

19 Art 5(1), art 6(a) and art 9(a) of the Hague Convention provide that the law of the chosen courts, including the choice of laws, should be applied to decide the validity of a jurisdiction clause; art 6(b) and art 9(b) provide exceptions to capacity of the parties. This approach is also supported by Nygh (n 9), 84; AG Opinion of G Slynn, Case C-150/80 Elefanten v Pierre Jacqmain [1981] ECR 1671, 1697–9Google Scholar.

20 Art 244 of PRC Civil Procedure Law (Amended) 2007. Different rules apply to domestic choice of court agreements, which can only be used in contract cases. See art 25. The law does not clarify what ‘property rights’ mean.

21 In the Hague Convention on Choice of Court Agreement 2005 and the Brussels I Regulation, the parties are allowed to choose competent courts in all types of disputes covered by the instruments. See art 2 of the Hague Convention; Art 23(1) of the Brussels I Regulation.

22 Shanghai Municipal High People's Court (2010) No 49.

23 Shanghai Municipal No 1 Intermediate People's Court (2008) No 210.

24 Art 244 of the PRC Civil Procedure Law (Amended) 2007.

25 Art 25 specifically lists these five courts available for the parties to choose from in domestic disputes. The same connection is likely to be applied to cross-border disputes to explain the meaning of the ‘practical connection’. See also the Supreme People's Court, ‘The Notice to Distribute the Summary of the Second National Meeting on the Trial of Foreign-Related Commercial and Maritime Cases’ (‘2005 Summary’), published 26 December 2005, art 4.

26 Shandong Jufeng (n 11), see the next paragraph. However, some courts only permit the parties to choose from the five specified places and would not consider other connections. See eg Meihong Xu v Conghua Yan Fujian Province High People's Court (2010) No 78.

27 Arts 22 and 241 of the PRC Civil Procedure Law (Amended) 2007 provide that in the absence of choice, the Chinese court has jurisdiction if it is the place where the contract is signed or performed, the object of the action is located, the defendant has detainable property, the defendant has its domicile, or the defendant has its representative agency, branch, or business agent.

28 The general tendency in the world permits the parties to choose a neutral forum to hear their disputes. See eg Hague Convention on Choice of Court Agreements 2005, art 3; Brussels I Regulation, art 23(1). However, certain restrictions may be necessary in order to protect the weaker party in contracts with inequality of bargaining power, such as employment contracts and consumer contracts. The Chinese law does not provide protective jurisdiction for these contracts. It is suggested that if Chinese jurisdiction rules on the ‘practical connections’ are abolished in the future, protective jurisdiction rules should be adopted to provide safeguards for the weaker parties in special contracts.

29 In Zheng v Wider Logistics Ltd Guangzhou Maritime Court (2005) No 267, the bill of lading provided that all disputes arising out of the US Carriage of Goods by Sea Act 1936 should be heard exclusively in the New York Court; for other disputes, the English courts had jurisdiction. After the dispute has arisen, the Chinese court took jurisdiction by holding neither New York nor England had connections with the dispute and the jurisdiction clause was invalid.

30 Supreme People's Court (2009) No 4.

31 ibid.

32 Supreme People's Court, ‘Opinion on Several Issues on the Application of the PRC Civil Procedure Law of the People's Republic of China’ (‘1992 Opinion’) [1992] No 22, art 24. SBF (Korea) (n 7); Zhongshan Shishen v Auli (n 14).

33 Beijing Municipal High People's Court (2005) No 98.

34 See also Zhongshan Shishen v Aul (n 14).

35 Article 3(b) of the Hague Convention; Brand, R, Herrup, P, The 2005 Hague Convention on Choice of Court Agreement (CUP, 2008) 262CrossRefGoogle Scholar.

36 See the English court's decision on art 17 of the Brussels Convention in Kurz v Stella Musical Veranstaltungs GmbH [1992] Ch 196, 203; Case 22/85 Anterist v Credit Lyonnais [1986] ECR 1951, 1962–1963; Banque Cantonale v Waterlily [1997] 2 Lloyd's Rep 347; Rodger, BJ, ‘Article 17 of the Brussels Convention: Exclusivity is a must?’ (1995) 14 Civil Justice Quarterly 253–4Google Scholar; Fawcett, JJ, Carruthers, JM, Cheshire, North & Fawcett: Private International Law (14th edn, OUP, Oxford, 2008), 288–9Google Scholar.

37 1992 Opinion (n 32). See also the Supreme People's Court, ‘Re the questions about the parties’ contractual choice of court’ [1995] No 157.

38 SBF is a 2005 case when the PRC Civil Procedure Law 1991 was in effect.

39 Guangzhou Maritime Court (2005) No 267.

40 The jurisdiction clause provided that if the cause of action was the carrier's liability, New York courts had exclusive jurisdiction; in all other cases, English courts had jurisdiction. This alternative choice was held valid. However, the jurisdiction clause was invalid on the ground that the chosen courts had no connections to the dispute.

41 Shanghai Municipal No 1 Intermediate People's Court (2010) No 6, aff'd, Shanghai Municipal High People's court (2010) No 49.

42 It is necessary to note that the current Chinese law does not provide protective jurisdiction rules to protect the weaker parties in contracts with the inequality of bargaining power.

43 Art 242.

44 Adopted at the Second Session of the Ninth National People's Congress on 15 March, 1999 and promulgated by Order No. 15 of the President of the People's Republic of China on 15 March, 1999.

45 Art 11.

46 The PRC Civil Procedure Law 1991 was established before the Contract Law entered into force. The requirement of ‘in writing’ prior to the Contract Law means the traditional method of ‘put things on paper’.

47 Wenzhou Foreign Trade Co of Light Industry Arts and Crafts v Compagnie Maritime d'Affrètement (CMA) (France) Fujian Province High People's Court, reference no CLI.C.21767 <www.chinalawinfo.com> (the choice of court agreement was printed on the face of the bill of lading in red while all other provisions were in blue).

48 SF Chemistry v DB Seafreight Qingdao Maritime Court (2009) No 277.

49 China PingAn Insurance Dalian Branch v Cosco Shipping Co Supreme People's Court, (2006) No 49.

50 See comments in supra sections II.C on the practical connection between the chosen court and the dispute.

51 Although the law does not expressly provide this effect, it is accepted by most courts and jurists. See eg Hu (n 3) 205.

52 Supreme People's Court [2005] No 6. The 2005 Summary was published to interpret the 1991 PRC Civil Procedure Law.

53 Art 11.

54 The issue as to whether China could adopt the doctrine of forum non conveniens is complicated and this article will not provide detailed discussion. See Guoguang Li, ‘The Talk in the National Trail Work of Economic Cases’, published by the Supreme People's Court 23 November 1998, section 3.5; Zhang (n 4) 73. In practice, a few Chinese courts have declined jurisdiction by using the doctrine of forum non conveniens. See Dongpeng Trade v HK Bank of East Asia, Selected Cases of People's Courts (People's Court Publishing, 1996) 143Google Scholar; Sumitomo Bank (n 8); Baron Motorcycles Inc v Awell Logistics Group, Inc Ningbo Maritime Court (2008) No 277; Jaten Electronic v Smartech Electronic Shanghai Municipal No 1 Intermediate People's Court (2009) No 51; Cai v Wang, Fujian Province Jinjiang Municipal Intermediate People's Court (1997) No 27; Jiangdu Shipyard v CICB Jiangsu Province High People's Court (2001) No 003; Castel Freres SAS v Li, Xu and Others Zhejiang Province High People's Court (2011) No 9.

55 Baron Motorcycles Inc, ibid, the court referred to the lack of a jurisdiction clause choosing China as one of the factors supporting the use of forum non conveniens to decline jurisdiction; Jaten Electronic ibid.

56 The 2005 Summary (n 25), art 11 does not distinguish exclusive and non-exclusive jurisdiction clauses. A possible explanation is that since the parties have, by agreement, submitted to Chinese courts, they have admitted that the trial in Chinese courts should be convenient, which excludes the consideration of forum non conveniens.

57 Articles 108 and 111 of the PRC Civil Procedure Law (Amended) suggest that once jurisdiction is granted to a Chinese court, taking jurisdiction is generally compulsory with only a few exceptions. One of the exceptions is the existence of a valid arbitration agreement: Schlosser, P, ‘Jurisdiction and International Judicial and Administrative Co-operation’ (2000) 284 Recueil des Cours 27Google Scholar.

58 This can be demonstrated by the excessively broad ground to assert jurisdiction in cross-border civil and commercial matters and the wide scope of exclusive jurisdiction. See arts 241 and 244 of the PRC Civil Procedure Law (2007).

59 [2005] No 6.

60 2005 Summary (n 25), art 12.

61 See in particular, infra subsection A. Breach of Valid Foreign Jurisdiction Clauses for the Purpose of Enforcement.

62 Most academic writers recognize the necessity to enforce an exclusive jurisdiction clause. See eg. Brittain, JT, ‘Foreign Forum Selection Clauses in the Federal Courts: All in the Name of International Comity’ (2000) 23 HoustJIntlLaw 305Google Scholar; Gauffreau, SC, ‘Foreign Arbitration Clauses in Maritime Bills of Lading’ (1995) 21 North Carolina Journal of International Law and Commercial Regulation 417Google Scholar; Schulze, H, ‘Forum Non Conveniens in Comparative Private International Law’ (2001) 118 SALJ 812Google Scholar; Slaughter, A, ‘A Global Community of Courts’ (2003) 44 HarvIntlLJ 206Google Scholar; Park, WW, ‘Bridging the Gap in Forum Selection: Harmonizing Arbitration and Court Selection’ (1998) 8 TransnatlL&ContempProbs 20Google Scholar; Solimine, M, ‘Forum-Selection Clauses and the Privatization of Procedure’ (1992) 25 CornellIntlLJ 52Google Scholar.

63 PRC Civil Procedure Law (amended) 2007, art 265. Even if both grounds are met, the Chinese courts can deny recognition and enforcement of judgments based on public policy.

64 Supreme People's Court, ‘Re whether the People's Courts should recognize and enforce the Judgment given by the Japanese Court in Payment of Debts’ [1995] No 17; NKK (Japan) v Beijing Zhuangsheng Beijing Municipal High People's Court (2008) No 919; RNO v Beijing International Music Festival Society Beijing Municipal No 2 Intermediate People's Court (2004) No 928.

65 NKK (Japan) v Beijing Zhuangsheng (n 64); RNO (n 64).

66 Supreme People's Court, 1992 Opinion, art 318: ‘If the party applied to the competent intermediate court of the People's Republic of China for recognition and enforcement of foreign judgments or rulings, if the country where the foreign court is located and the People's Republic of China have not concluded or acceded to international treaties, or formed the relation of reciprocity, the applicant could sue in the People's Court for the competent People's Court to make judgment for enforcement.’

67 Beijing Municipal High People's Court (2008) No 919.

68 ibid. 2005 Summary (n 25), art 12.

69 NKK (Japan) v Beijing Zhuangsheng (n 64).

70 Beijing Municipal No 2 Intermediate People's Court (2004) No 928.

71 The court rejected the claim that the same type of Chinese judgments should be able to be recognized and enforced in England pursuant to English law though such precedents do not exist so far. Only existing precedents can generate the principle of reciprocity.

72 Eg Watanabe v Culture & Art Press (n 23). See infra text accompanying footnotes 77–78.

73 Xiamen Municipal Intermediate People's Court, 2003.08.13.

74 The choice of court agreement in this case is a non-exclusive one. However, the court made decision largely based on the possibility of enforcing Hong Kong judgments, instead of the non-exclusive nature of the jurisdiction clause.

75 The Eleftheria (n 2); The El Amria (n 2).

76 Yacheng Automobile Parts v Huifeng Jiangsu Province Wuxi Municipal Intermediate People's Court (2006) No 23; Sojitz v Xiao Shanghai Municipal High People's Court (2004) No 72; Wenzhou Light Article Industry v CMA (France) (n 47).

77 Shanghai Municipal No 1 Intermediate People's Court (2008) No 210.

78 Supreme People's Court, ‘Re Whether the Chinese People's Courts should recognize and enforce the Japanese Judgments Relating to Debt and Credit’, 26.6.1995, [1995] No 17; Application of Gomi Akira (A Japanese Citizen) to Chinese Court for Recognition and Enforcement of Japanese Judicial Decision, 1994.11.05, Liaoning Province Dalian Municipal Intermediate People's Court, (1996) 1 Gazette of the Supreme People's Court of the People's Republic of China. Li, W, ‘Principle of Reciprocity in the Terms of Recognition and Enforcement of Foreign Courts’ Judgments’, (1999) 86 Tribune of Political Science and Law 92Google Scholar.

79 2005 Summary (n 25), art 12.

80 Art 318; RNO (n 64); NKK v Beijing Zhuangsheng (n 64).

81 Ten EU Member States, ie Belgium (1988), Bulgaria (1995), Cyprus (1996), France (1987), Greece (1996), Hungary (1997), Italy (1995), Poland (1988), Romania (1993) and Spain (1994) have entered into such bilateral treaties with China.

82 Eg the US Court of Appeals for the Ninth Circuit affirmed the decision of the District Court Central District of California to recognize and enforce Chinese judgments under the California's Uniform Foreign Money-Judgments Recognition Act in Sanlian & Pinghu v Robinson Helicopter No 09-56629.

83 Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the Hong Kong SAR Pursuant to Choice of Court Agreements between Parties Concerned 2006.

84 Art 3.

85 Art 1.

86 Art 1.

87 Shanghai Municipal High People's Court, (2010) No 49.

88 See supra text accompanying footnotes 67–69.

89 Fujian province High People's Court, reference no. CLI.C.21767 <www.chinalawinfo.com>.

90 Treaty on Judicial Assistance in Civil and Commercial Matters between the People's Republic of China and Republic of France, ratified in the 22th meeting of the sixth NPC Standing Committee on 5 Sept 1987, entered into force on 8 Feb 1988.

91 ibid, art 19(1).

92 ibid, art 22.

93 ibid, art 22(1).

94 Jiangsu Province Wuxi Municipal Intermediate People's Court, (2006) No 23.

95 Treaty on Judicial Assistance in Civil and Commercial Matters between the People's Republic of China and Singapore; entered into force on 27 June 1999.

96 Art 20.

97 Compare NKK (Japan) v Beijing Zhuangsheng (n 64), RNO (n 64) and Watanabe (n 23).

98 See the approach to take jurisdiction irrespective of a valid foreign exclusive jurisdiction clause for the purpose of enforcement of judgment in supra subsection IV.A.

99 Lai v ABN AMRO Bank; Wenzhou Light Article Industry v CMA (France) (n 47); Yacheng Automobile Fittings v HSBC Holdings Plc (n 76).

100 See Liu, En-yuan, ‘Basic Conditions for China to Recognize and Enforce Foreign Judgments’ (2008) 23 Journal of Shanghai University of Political Science and Law 63Google Scholar.

101 For example, the Supreme People's Court has already removed the rigid recognition rule in the enforcement of foreign decisions on divorce. See Supreme People's Court, ‘Notice on Distribution of the Regulation about Chinese Citizens Applying for Recognition and Enforcement of Foreign Divorce Judgments’, [1999] No 21; Supreme People's Court, ‘Regulation on Some Issues about Accepting the Application in Recognition and Enforcement of Divorce Judgments Given by a Foreign Court’ [2000] No 6.

102 The Convention has been signed by Mexico, US and the EU.

103 Schulze, C, ‘The 2005 Hague Convention on Choice of Court Agreements’ (2007) 19 SAMercLJ 140Google Scholar; Garnett, R, ‘The Hague Choice of Court Convention: Magnum Opus or Much Ado About Nothing?’ (2009) 5 Journal of Private International Law 161CrossRefGoogle Scholar, section 3.2.

104 See Lai v ABN AMRO Bank (n 22); Shandong Jufeng (n 11). See supra text accompanying footnotes 22–23 and the comments on Shandong Jufeng in supra section II.C.

105 See Qu, Guangqin, Wang, Shumin, Jia, Shunning, ‘Hague Convention on Choice of Court Agreements and Its Relation to Legislation of Chinese Private International Law’ (2006) 95 Journal of Henan Administrative Institute of Politics and Law 28–30Google Scholar; Wang, Jiwen, ‘Analysis of the Necessity for China to Ratify the Hague Convention on Choice of Court Agreements’ (2009) 16 Anhui University Law Review 156ffGoogle Scholar; Tu (n 3); Gao, Xiao-Li, ‘The Impact of the Hague Convention on Choice of Court Agreements on Chinese Adjudication in Civil and Commercial Matters’ (2006) People's Judicature 86–7Google Scholar.

106 Art 2 of the Hague Convention. See Garnett (n 103), section 3.2. Some issues that are covered by the New York Convention are excluded from the Hague Convention.

107 ibid art 9 of the Hague Convention. ibid Garnett.

108 ibid art 21.

109 Most Chinese jurists argue that ratifying the Hague Convention 2005 could bring more advantage to China and Chinese business than disadvantage. See supra n 102.

110 For example, China revised the Chinese law on adoption before it ratified the Hague Convention on the Protection of Children and Cooperation 1993 in 2005. See more discussion in Hanqin Xue, Jin, Qian, ‘International Treaties in the Chinese Domestic Legal System’ (2009) 8 Chinese Journal of International Law 299Google Scholar, para 25–32.

111 The possibility for the Chinese courts to use discretion is even accepted by the Supreme People's Court. See the 2005 Summary (n 25), arts 11 and 12.