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Overlapping Jurisdictions and the Resolution of Disputes Before Chinese and Foreign Courts

YEARBOOK OF PRIVATE INTERNATIONAL LAW: VOLUME XVII - 2015/2016, A. Bonomi, G.P. Romano, Verlag Dr. Otto Schmidt KG, Germany, 2017

Sydney Law School Research Paper No. 16/102

34 Pages Posted: 6 Dec 2016  

Vivienne Bath

The University of Sydney Law School

Date Written: December 5, 2016

Abstract

The rapid expansion of the Chinese economy since 1979 is reflected in the growth in Chinese and foreign interactions through trade and investment in China and a major increase in the operations of Chinese companies overseas. As a result, the prospects - and implications - of China-related legal disputes have become increasingly important to both foreign and Chinese enterprises. Jurisdictional conflicts and parallel proceedings in cross-border cases are certainly not a new problem in international business. However, the approach taken by the Chinese courts, which constitute an increasingly significant participant in the area of transnational litigation, raises important issues in the areas of comparative private international law, Chinese civil procedure law and policy, and international business law.

This article examines a range of recent foreign and Chinese commercial and maritime cases which have presented the issue of overlapping or conflicting jurisdiction. It also looks at recent developments in Chinese law and practice in relation to jurisdiction in cross-border cases, focussing on the Civil Procedure Law of the People’s Republic of China, as revised in 2012 (Civil Procedure Law),[1] and the 2015 Supreme People’s Court Interpretation on the Civil Procedure Law (Interpretation).[2] It considers, first, the circumstances in which parallel and overlapping proceedings in Chinese and non-Chinese court have arisen; secondly, how the issues of choice of jurisdiction and conflicts between jurisdictions are handled by the Chinese courts and, thirdly, the issues that these cases and practices present in terms of efficient and final resolution of disputes. The article concludes that, despite recent reforms, Chinese law and practice in relation to these issues is unduly restrictive, and presents a number of suggestions as to how these issues could be more efficiently handled.

Note: This is a longer version of the paper posted 29 March 2016 under the name “Overlapping Jurisdiction and the Chinese Courts".

Keywords: China, private international law, jurisdiction, enforcement of judgments, overlapping jurisdiction, maritime law, Chinese cases, conflicts of law, parallel proceedings, forum non conveniens, judicial sovereignty, comity

JEL Classification: K00, K10, K30, K41, K42

Suggested Citation

Bath, Vivienne, Overlapping Jurisdictions and the Resolution of Disputes Before Chinese and Foreign Courts (December 5, 2016). YEARBOOK OF PRIVATE INTERNATIONAL LAW: VOLUME XVII - 2015/2016, A. Bonomi, G.P. Romano, Verlag Dr. Otto Schmidt KG, Germany, 2017; Sydney Law School Research Paper No. 16/102. Available at SSRN: https://ssrn.com/abstract=2880942

Vivienne Bath (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

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