Elgar Asian Commercial Law and Practice series
Chapter 4: DECLINING JURISDICTION IN CHINESE COURTS
The rules of positive jurisdiction grant jurisdiction to a particular country, designed to define and exercise national judicial sovereignty; to express national interest to adjudicate cross-border disputes; to enforce the extraterritorial policy of a country; and to protect the right of its citizens. Negative jurisdiction requires a court not to take jurisdiction, even if it is competent, which reflects other policies, including procedural efficiency, the ends of justice and international comity. Negative jurisdiction in Chinese law is undeveloped. This is mainly because Chinese authorities, for historic reasons, place more emphasis on protecting judicial sovereignty. Judicial sovereignty takes priority over trial efficiency and international comity and the Civil Procedure Law (CPL) uses affirmative terms to make jurisdiction of Chinese courts compulsory. Article 123 of CPL provides that: ‘The people’s court must entertain the lawsuits filed in conformity with the provisions of Article 119 of this Law…’ Article 119 provides four conditions for a court to assert jurisdiction, namely a competent plaintiff, a definite defendant, a specific claim and the existence of jurisdiction. These two articles suggest that once the four elements are satisfied, the court must hear the case unless the law explicitly provides otherwise. However, it does not mean a Chinese court would never decline the jurisdiction granted to it by the positive jurisdiction rules.
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