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Chronology of Practice: Chinese Practice in Private International Law in 2020
This post has been prepared by He Qisheng, Professor of International Law, Peking University Law School, and Chairman at the Peking University International Economical Law Institute, has published the 7th Survey on Chinese Practice in Private International Law.
This survey contains materials reflecting the practice of Chinese private international law in 2020. First, regarding changes in the statutory framework of private international law in China, three legislative acts, one administrative regulation on the Unreliable Entity List and ten judicial interpretations of the Supreme People’s Court were adopted or amended in 2020 on a wide range of matters, including conflict of laws, punitive damages, international civil procedure, etc. Second, 11 typical cases involving Chinse courts’ jurisdiction are selected to highlight the development in Chinese private international law, involving standard essential patents, abuse of market dominance, declaration of non-infringement of patent, asymmetric choice of court agreement and other matters. Third, nine cases on choice of law questions relating, in particular, to habitual residence, rights in rem, matrimonial property regimes and ascertainment of foreign law, are examined. Fourth, five cases involving anti-suit injunction or anti-enforcement injunction are reported and one introduced in detail. Fifth, the first occasion for on international judicial assistance of extracting DNA, as well as three representative cases on the recognition and enforcement of foreign judgments, are discussed. The Statistics of international judicial assistance cases in China is first released in this survey. Finally, this survey also covers five recent decisions illustrating Chinese courts’ pro-arbitration attitude towards the uncertainty brought about by contractual clauses referring to both litigation and arbitration.
Here are the links to the article:
· Standard link (you may share this link anywhere):
https://academic.oup.com/chinesejil/advance-article-abstract/doi/10.1093/chinesejil/jmab031/6449363
· Free-access link (see below for how you may use this link):
https://academic.oup.com/chinesejil/advance-article/doi/10.1093/chinesejil/jmab031/6449363?guestAccessKey=4f7f76a9-41f4-4c46-9366-ea0198ab74ca
Table of Contents
- Introduction
- Overview
II.A. Report on the Work of the SPC in 2020
II.B. Laws and the SPC’s interpretation
II.C. Provisions on punitive damages
III. Jurisdiction
III.A. Intellectual property
III.A.i. Jurisdiction over the standard essential patent disputes
III.A.ii. Jurisdiction over the disputes of abuse of market dominance
III.A.iii. Jurisdiction over the giving of declaratory judgment in patent disputes
III.B. Choice of court agreement
III.C.i. An asymmetric choice of court agreement
III.C.ii. Choice of court agreement and hierarchical jurisdiction of the Chinese court system
III.C. Other choices in contracts
- Choice of law
IV.A. Habitual residence
IV.B. Proprietary rights
IV.C. Matrimonial assets
IV.D. Ascertainment of foreign law
- International judicial assistance
V.A. Statistics of judicial assistance in civil or commercial matters
V.B. Taking of evidence for foreign courts
- Action preservation and anti-suit Injunction
VII. Recognition and enforcement of foreign judgments
VIII. International arbitration
VIII.A. Agreements with jurisdiction and arbitration clauses
VIII.B. Construction on “judgment upon the award”
Golan v. Saada: A New Hague Child Abduction Case at the U.S. Supreme Court
Last week, the Supreme Court of the United States agreed to hear a case concerning Hague Convention on the Civil Aspects of International Child Abduction. Amy Howe has an excellent summary of the case on her blog, Howe on the Court.
Under the convention, children who are wrongfully taken from the country where they live must be returned to that country, so that custody disputes can be resolved there. The convention makes an exception for cases in which there is a “grave risk” that returning the child would expose him or her to physical or psychological harm.
In Golan v. Saada, a U.S. citizen married an Italian citizen in 2015; they had a child, born in Milan, in 2016. The husband was allegedly abusive toward the wife throughout the marriage, but he did not directly abuse their son. In 2018, the wife took the child to the United States and did not return, remaining in a domestic-violence shelter in New York. The husband went to federal court there, trying to compel the child’s return to Italy.
The U.S. Court of Appeals for the 2nd Circuit ruled that, when a district court concludes that a child’s return would pose a grave risk of harm, the district court must consider measures that would reduce that risk. This holding clashes with the holdings of other courts of appeals, which do not mandate the consideration of such measures, particularly in cases involving domestic violence. The case then went back to the district court, which ordered the child’s return to Italy with a variety of protective measures in place – for example, mandatory therapy and parenting classes. The Supreme Court agreed to decide whether courts are required to consider all measures that might reduce the grave risk of harm if the child were to return home.
The case will be argued in the Spring and decided before June 2022; the docket and publicly available filings can be accessed here.
The fifth EFFORTS Newsletter is here!
EFFORTS (Towards more EFfective enFORcemenT of claimS in civil and commercial matters within the EU) is an EU-funded Project conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, the University of Heidelberg, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.
The fifth EFFORTS Newsletter has just been released, giving access to up-to-date information about the Project, save-the-dates on forthcoming events, conferences and webinars, and news from the area of international and comparative civil procedural law.
Regular updates are also available via the Project’s website, and LinkedIn and Facebook pages.
Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union