涉外民商事案件的管辖冲突与司法审查

涉外民商事案件的管辖冲突包括涉外民事诉讼管辖冲突与涉外商事仲裁管辖冲突两方面,均必须通过司法审查予以解决。前者解决的是同一案件应由内国法院还是外国法院审理的问题,需要通过作为司法审查标准的管辖权规则的适用加以解决;后者解决的是同一案件应由仲裁机构还是人民法院来处理。仲裁与诉讼是解决涉外民商事纠纷的两种主要途径。虽然有效的仲裁协议排除诉讼管辖,但仲裁协议的效力、仲裁事项的性质以及裁决的承认与执行等问题均为人民法院司法审查的对象。涉外仲裁司法审查的主要目的就是解决仲裁与诉讼管辖的冲突。对于涉外诉讼管辖冲突,作者将通过一事两诉案件、协议管辖案件和责任竞合案件的分析来阐明司法审查中的处理原则。对于涉外仲裁管辖冲突,本文将从仲裁协议的法律适用,裁判解释、仲裁范围的确定以及仲裁与诉讼竞合案件的处理等方面,来分析司法审查中处理仲裁管辖与诉讼管辖冲突的规则。

Jurisdiction的政治含义——基于西方中世纪政治史的考察

Jurisdiction不仅仅指司法权和管辖权,它首先指一般性的政治权力。中世纪早期的社会政治经济条件决定了司法权是政治权力的唯一存在方式。多元政治共同体、政治权力中心和法律体系并存的局面导致了"管辖权竞争"。在竞争过程中,不仅作为内部管理机制的管辖权逐步体系化,形成了等级化的司法体系,为现代民族国家的诞生奠定了基本的制度基础;更重要的是,作为外部权力界限的管辖权也逐步明确,形成了以王权为核心、王国为基本政治单位的"国际"政治法律格局。Jurisdiction的历史积淀充分反映了西方法治主义的诸多重要理念、制度基础和对现代民族国家诞生的重大影响。

The Current HIV/AIDS Prevention Strategies—Widely Outsmarted by Omitting Realities: A Socio-Critical Analysis in the Context of Powerless Law, Ethics and Asymmetric Interpretation of Human Rights

The HIV pandemic seems to be fading to some degree—but there are regional exceptions. The current liberal prevention strategy with programs aimed at risk reduction interventions in particular for sexual behavior and injecting drug use has been expanded by antiretroviral treatment approaches. It was expected to keep the prevalence of infectious individuals below a certain threshold to curb self-sustaining chains of HIV infections. The introduction of biomedical approaches by ART/HAART with regard to practicing risk reduction behavior has been received as an exemption of responsibility by certain populations who are defined as “at-risk” population. Certain parts of the hard-to-reach, high-risk population have returned to unsafe sex practices leading to careless behavior which in turn has promoted the spread of HIV. This is supported by modern trends in risk societies where with regard to HIV basic principles of ethics and tenets of the Human Rights like “don’t harm other people” have lost any normative power. In addition, with the support of NGOs, legal norms such as protecting the “bodily integrity of individuals” have been ignored, allowing the “passing of HIV to partners” to become socially acceptable behavior. As a whole, in defiance of the endeavors of prevention applied so far, certain societies are exposed to an ongoing spread of HIV.

Study on the Application of Economic and Trade Law to International Cargo Contracts

In economic and trade transactions, lawsuits of contractsfor international sale of goods are unavoidable. On theseinternational commercial lawsuits, how to use the law ofeconomic and trade suitably and how to strive for the ini-tiative are rather important links in settling the disputesof contracts for international sale of goods. Around aconcrete contract dispute, this article will investigate andanalyse those relevant legal problems, so as to help theself - protection consciousness and the trade practice ofthe parties.

The Margins of European Identity Orthodox Geopolitics in Moldovan Ethnopolitics

This article presents the preliminary results of an ongoing Ph.D. project examining the interrelatedness of competing religious, nationalist and geopolitical projects in the Republic of Moldova. By looking at the local churches＇ public address around key events in recent Moldovan history, it is sought to determine to which degree the local churches are mirroring the positions of the patriarchates and their hosting states. The main hypothesis is that the local churches to a larger extent than recognized in the existing literature are acting independently pursuing their local interests and forming alliances to this end. If this is the case the churches can be expected to phrase the question of national and geopolitical belonging differently from the competing Moldovanist and pan-Romanian narratives as well as the European and Eurasian projects.

The Future Protection and Utilization of the Marine Biological Genetic Resources beyond the National Jurisdiction--Analysis based on TRIPS Agreement

Intellectual property system gives rise to international concern in the context of development and protection of the marine biological genetic resources beyond the national jurisdiction. The core argument is whether can be current international intellectual property system plays an active role for balancing the respective benefits to make sure resolve this special area issue. The Agreement On Trade-related Aspects of Intellectual Property Right （TRIPS Agreement） provides basic requirements to international intellectual property application. This paper is intended to examine the feasibility of TR1PS clauses in the above context and then some suggestions are put forth.

New Developments and Challenges in the UN Norms on Human Rights Responsibilities of Transnational Corporations

With the adoption of the"Legally Binding Instrument to Regulate,in International Human Rights Law,the Activities of Transnational Corporations and other Business Enterprises"and its revised draft,the codification of the human rights responsibilities of transnational corporations has entered a new era The instrument aims to supplement the shortcomings of transnational corporations in fulfilling their human rights responsibilities by strengthening the obligations of states and to improve the host country’s inadequate remedies for human rights violations by establishing extraterritorial human rights jurisdiction of home countries But the instrument has encountered various challenges because the human rights obligations and legal responsibilities of states go beyond the current domestic human rights systems and impact the existing theories and practices of international human rights law In order to resolve the differences among countries,the future codification of the instrument should be based on existing domestic and international legal systems and practices striking a balance between the interests of developing and developed countries,taking into account the objectives of both the fair treatment of transnational corporations and human rights protection,to promote the regulatory effect of the human rights responsibilities of transnational corporations.

From"Online Trial"to"Network Govemance":A Perspective on the Functional Transformation of Internet Courts

Internet courts in the 1.0 era achieved initial success in"online trial"and facilitation of the people's access to judicial services,yet lacked the particularity that special courts should have in terms of organization,cases and procedures,making them difficult to fulfill the function of governance of network society.Compared with rule and management,governance has the features of decentralization,broad scope,and co-construction of rules.Features of network society are in line with the structure of social governance theory.To fulfill their function of governance of network society,internet courts in the 2.0 era,as the integrator of multiple centers and cyberspace as well as the analyzer of internet rules,need to improve in terms of organization,cases and procedures:In terms of organization,consider upgrading internet courts to be intermediate courts and identifying them as cross-region courts in cyberspace;in terms of cases,redefine the essence and extension of"online cases"with elements including wholly cyberspacerelated civil and commercial dispute resolution,new business format management on internet platforms,and governance of data-related rights;and in terms of procedures,improve Internet courts'case selection procedures,judgement effect extension procedures,investigation procedures for independent evidence collection of internet cases,and automatic enforcement procedures ensuring the instant enforcement of judgment,so as to promote a mature and complete legal framework for cyberspace governance.

Transfer Pricing Regulations of Armenia:Issues with Some of the Current Provisions and Their Possible Solutions

Armenian transfer pricing(TP)regulations are still in the starting period of their application,as the provisions for conducting TP administration have been put into force only since 13 April 2022.Prior to that,the TP legislation was incomplete due to lack of provisions for effective tax administration.When the legislative amendments took effect,the TP became a separate type of tax audit with its specific features on procedure.Notwithstanding the fact that amendments solved many legislative issues,there were still many problems that emerged while applying the provisions in practice and hence needed to be tackled by further legislative amendments.This article explores some of the current major problems that the Armenian TP regulations face and the possible solutions that might be implemented in the near future.

TRANS-REGIONAL COURTS IN CHINA:A STUDY OF ESTABLISHMENT MODELS AND JURISDICTIONAL RULES

The trans-administrative regional(trans-regional)court was created as part of China’s judicial reforms in 2014.Thus far,only two trans-regional courts have been established,namely the Shanghai No.3 and Beijing No.4 Intermediate People’s Courts.An important reason for this slow pace is that the trans-regional court has transcended the current structural framework under the Organic Law of the People’s Courts in that(1)it is neither a specialized court that hears certain types of cases,(2)nor a local court established completely in keeping with administrative divisions.Therefore,the legal nature and status can only be clarified and justified when there is a clear definition of this new court system in the Organic Law of the People’s Courts.Several models,namely the independent set-up model,full reshuffling model and limited transformation model,have been proposed for the establishment of trans-regional courts.The most practical and efficient among these models is the limited transformation model,aiming to reconstruct the existing railway transportation courts.The trans-regional courts may have exclusive,alienage,or supplemental jurisdiction.Each form addresses particular types of special and major trans-regional cases,and other cases based on the theory of consolidation.

Dilemma of concepts and strategies for the prevention of spread of HIV in relation to human behavior,law and human rights

The new prevalence data regarding the estimated global number of human immunodeficiency virus positive (HIV+) cases,i.e.,including people who are either aware or unaware of their HIV infection in 2010,lead many to wonder why the increase in incidence has reached today’s unprecedented level and escalated within such a short time.This,in spite of prevention campaigns in countries affected by HIV/acquired immune deficiency syndrome (AIDS) with their urgent messages aimed at preventing HIV transmission by promoting changes in individual’s behavior.This article analyzes the background of the prevention strategies,in particular their political,social and legal concepts in terms of human rights,and reveals traits of human behavior not considered thus far.A radical reappraisal is necessary,at social and legislative levels,as well as options additional to current concepts.When ethical issues come up,they become blamed for outmoded moralistic positions.However,ignoring the reality has led to dire consequences from prioritizing individual human rights over society’s collective need to prevent the spread of HIV.

Towards a Global Regulatory Framework for Cross-Border Data Flows——Fundamental Concerns and the China’s Approach

Cross-border data flows not only involve cross-border trade issues,but also severely challenge personal information protection,national data security,and the jurisdiction of justice and enforcement.As the current digital trade negotiations could not accommodate these challenges,China has initiated the concept of secure cross-border data flow and has launched a dual-track multi-level regulatory system,including control system for overseas transfer of important data,system of crossborder provision of personal information,and system of cross-border data request for justice and enforcement.To explore a global regulatory framework for cross-border data flows,legitimate and controllable cross-border data flows should be promoted,supervision should be categorized based on risk concerned,and the rule of law should be coordinated at home and abroad to promote system compatibility.To this end,the key is to build a compatible regulatory framework,which includes clarifying the scope of important data to define the“Negative List”for preventing national security risks,improving the cross-border accountability for protecting personal information rights and interests to ease pre-supervision pressure,and focusing on data access rights instead of data localization for upholding the jurisdiction of justice and enforcement.

DIFFICULTIES CONFRONTED BY ICSID TRIBUNALS IN DECIDING INTERNATIONAL INVESTMENT CORRUPTION CASES AND POSSIBLE SOLUTIONS

The issue of corruption has attracted increasing attention in the study and practice of international investment law during recent years.After taking prudent consideration of the corruption defense invoked by the host states in some international investment arbitration cases involved with corruption,International Center for Settlement of Investment Disputes(ICSID)tribunals accordingly determined the final awards.However,some parts of the arbitral jurisprudence aroused strong criticism,especially with regard to the ICSID tribunals’reasoning that arbitrators have no jurisdiction over corruption-tainted international investments.The ICSID tribunals are legitimately supposed to exercise their jurisdiction and are lawfully obliged to probe into the nature of corrupt activities.The tribunals are strongly expected to adopt a balanced approach in deciding the merits and fairly weighing the obligations,rights,and interests of both disputing parties.It is preferable to strengthen the collaborative interaction between ICSID proceedings and domestic anti-corruption enforcement mechanisms when it comes to combating corrupt international investment activities.Existing international treaties(or specific treaty provisions)on combating corruption in international business transactions and calling for international cooperation,alongside domestic anti-corruption enforcement legislation,have actually laid solid legal foundations for the establishment of such an anti-corruption coordinative mechanism between ICSID and domestic corruption regulatory authorities on the global level.

RECOGNITION AND ENFORCEMENT OF JUDGMENTS BETWEEN CHINA, JAPAN AND SOUTH KOREA IN THE NEW ERA： SOUTH KOREAN LAW PERSPECTIVE

This article discusses the rules for recognition and enforcement of foreign judgments in the Republic of Korea （hereinafter referred to as ＂South Korea＂ or ＂Korea＂）. Articles 217 and 217-2 of the Civil Procedure Act of Korea and Articles 26 and 27 of the Civil Enforcement Act of Korea provide for the recognition and enforcement of foreign judgments respectively. Korea has not entered into any bilateral or multilateral treaties regarding the recognition and enforcement of foreign judgments and is not a party to the Convention on Choice of Court Agreements. The article also considers the current undesirable status of recognition and enforcement of judgments in the region consisting of China, Japan and South Korea （hereinafter referred to as ＂Region＂） and suggests a course of action to be taken to improve the situation. The author believes that the experts of the Region should embark upon a project to improve the current situation and that the first step should be to exchange and gather information on the current legal regime of the countries in the Region on the recognition and enforcement of judgments. The author looks forward to future cooperation among the experts in the Region on this topic and is confident that the reciprocity requirement, which currently is a major obstacle to the mutual recognition and enforcement of foreign judgments in the Region, will be overcome in the near future.

Study on the taxation problems and strategies of digital commodities in e-commerce

With the electronic commerce growing rapidly,the expansion of digital commodity transaction scale makes the tax solutions of digital commodity more difficult.There is disagreement on the problems of the attribute of taxation object,the tax jurisdiction definition and the mechanism of tax collection and management.Based on the analysis of the international dispute,and combining with the existing problems in the tax treatment of China,the paper suggests that Chinese government should revise digital commodity tax policy,which clarifies whether digital commodities belong to the service or intangible assets;that online sale of cross-border digital commodities should obey the“consumer(recipient)location”principle and adopt the concept of virtual permanent establishment,implementing reverse taxation mechanism on B2B transactions and the third party tax collection mechanism on B2C transactions;and that the“provider self-declaration and paying tax”mechanism on the in-border digital commodities transaction should be carried out.

DOES CHINA NEED AN ANTI-FOREIGN BRIBERY STATUTE？ SOME LESSONS FROM THE FCPA OF US

Globalization has been accompanied by the spreading of bribing foreign officials. In order to curb the transnational corruption, the US has pioneered the anti-foreign bribery through enacting the 1977 Foreign Corrupt Practice Act （FCPA）, which also stimulated the formulation of international anti-corruption agreements. Even though the 8th Amendment of China＇s Criminal Law contains a concise provision on sanctioning bribing foreign officials, however, China still does not have a comprehensive anti-foreign bribery legal mechanism. As the second largest economy of the world, China seems inevitably to have its own anti-foreign corruption statute. This article aims to use the U.S. FCPA as an analytical subject to discuss whether or not China has the necessity of enacting its own statute of foreign corruption prevention. The issues such as extraterritorial jurisdiction and compliance burden should also be considered in the enactment of China＇s possible anti-foreign bribery law.

Fiscal Stimulus Measures in Response to COVID-19:A Comparative Analysis and Future Approaches for Key BRI Jurisdictions

The COVID-19 virus has rapidly escalated from a localized health emergency to a global pandemic at an unprecedented speed,with a global footprint expanding at an exponential rate.This paper focuses on a review of the tax measures taken and seeks to identify the most effective steps.It commences with a brief look at the measures taken in the financial crisis of 2008/09,and then narrows the comparison down to tax policy measures with particular emphasis on China and key BRI jurisdictions.The paper concludes with recommendations for BRI jurisdictions.The most effective tax measures at this stage of the coronavirus crisis are those that can help businesses to improve their cash flow and stay in business.At a later point,it may be necessary to introduce further measures to stimulate the economies.BRITACOM has an important role to play in coordinating the tax policy responses to the crisis in BRI jurisdictions.

Tax Policies Supporting Growth and Sustainable and Equitable Development in Post-COVID Economic Recovery Period

As the pandemic begins to ease in some places,the support made available to individuals and businesses should be gradually phased out and replaced by spending to encourage economic growth and employment.While businesses and individuals are recovering from the problems caused by the pandemic,revenue from corporate and individual income taxes may be reduced.Additional tax revenues can however be gained from improved taxation of the digital economy and the opportunities to identify undisclosed income sources arising from agreements for the exchange of tax information.Jurisdictions must modernise tax administration to improve taxpayer compliance and reduce the size of the informal and shadow economies.Modernisation and digitalisation of tax administration can significantly improve tax collection.Using the dialogue process under BRITACOM,the BRI jurisdictions can benefit from the experience of other developing jurisdictions and receive technical support to improve tax administration and collection.Tax incentives could be used to encourage businesses to invest in the digital and green energy sectors.These incentives should be specifically framed and targeted to achieve the maximum effect and monitored to ensure that they continue to achieve the required goals.

New Technologies and Transfer Pricing in the BRI Jurisdictions

This paper explores the linkage between emerging new technologies and transfer pricing,and the mechanisms available to minimise and resolve disputes in this area.It explores the way that these technologies can help achieve a better application of the Arm’s Length Principle(ALP)which remains the bedrock for transfer pricing around the world.It also identifies the way that both MNEs and Tax Administrations can use these technologies to get access to more comparable information and to achieve greater consistency in the allocation on the basis of the ALP.Finally some new ways of achieving more effective cross-border resolution mechanisms in the BRI jurisdictions are explored.

Tax Policies and Measures to Tackle the Impact of COVID-19 in BRI Jurisdictions and Related Challenges

The COVID-19 pandemic has presented significant challenges to businesses and households around the globe.In response to the outbreak of the pandemic,governments are using tax policies and tax administrative measures to alleviate corporates and individuals from cash flow pressures.This article summarizes the tax policy measures taken by a few BRI jurisdictions,provides an overview of the cross-border issues arising from exceptional and temporary work location changes due to the pandemic and briefly discusses the challenges faced by governments and corporates and how tax can play a role to deal with these challenges.