涉外管辖协议效力的审查与认定

Examination and Determination of the Effectiveness of Foreign Jurisdictional Agreements

在涉外民事诉讼中,协议管辖制度是缓解管辖冲突并确定诉讼管辖权的重要内容之一。其是建立在当事人在意思自治的基础上,对于在争议发生之前或之后约定特定的法院行使管辖权,目前在涉外民商事领域,协议管辖已被大多数国家所接受且在国内法律制度中都规定了协议管辖制度,我国也包含在其中,协议管辖制度在立法和司法实践中一直发挥着确定管辖权、提高司法效率的作用。但在长期的实践中我国对于涉外协议管辖效力的审查主体,审查内容以及涉外管辖协议效力的准据法等方面依然存在立法上的空白和实践中的处理混乱问题,所以文章在讨论确定涉外管辖协议的性质上对认定涉外管辖协议效力准据法、涉外管辖协议效力的审查主体和审查内容进行了分析讨论,对我国国内法中关于涉外管辖协议的效力认定的法律规定提出完善的建议。

One of the important content of alleviating conflict of jurisdiction in foreign litigation and determining the jurisdiction of litigation is the agreement jurisdiction system, in which the parties agree on a specific court before or after the dispute arises on the basis of the autonomy of autonomy. At present, in commercial areas, agreement jurisdiction has been accepted by most countries. All countries including China have designed this system in the domestic jurisdictional system. In the legislative and judicial practice, it has also been playing the role of determining jurisdiction and improving judicial efficiency. However, in the long-term practice, there still exist some legislative gaps and practical problems in the review of the subject of censorship of the validity of foreign-related agreements, the content of censorship and the applicable law of foreign-related jurisdictional agreements. Therefore, this paper analyzed and examined the main body and content of the review of the validity of the agreement on the jurisdiction of foreign-related jurisdiction and the validity of the agreement on foreign-related jurisdiction and put forward some suggestions on the determination of the validity of the agreement on foreign-related jurisdiction in China.