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Interregional Recognition and Enforcement of Civil and Commercial Judgments: Lessons for China from Us and Eu Laws INTERREGIONAL RECOGNITION AND ENFORCEMENT OF CIVIL AND COMMERCIAL JUDGMENTS: LESSONS FOR CHINA FROM US AND EU LAWS by Jie Huang School of Law Duke University Date:___June 16, 2010_________ Approved: _ _____ Ralf Michaels _________ [Supervisor Name], Supervisor _ ____ Paul Carrington _______ [Committee Member Name] _ _____ Paul Haagen ________ [Committee Member Name] ___________________________ [Committee Member Name] ___________________________ [Committee Member Name] Dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Juridical Science (S.J.D.) in School of Law of Duke University 2010 i v ABSTRACT INTERREGIONAL RECOGNITION AND ENFORCEMENT OF CIVIL AND COMMERCIAL JUDGMENTS: LESSONS FOR CHINA FROM US AND EU LAWS by Jie Huang School of Law Duke University Date:___June 16, 2010_________ Approved: _ _____ Ralf Michaels _________ [Supervisor Name], Supervisor _ ____ Paul Carrington _______ [Committee Member Name] _ _____ Paul Haagen ________ [Committee Member Name] ___________________________ [Committee Member Name] ___________________________ [Committee Member Name] An abstract of a dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of Juridical Science (S.J.D.) in School of Law of Duke University 2010 i v Copyright by Jie Huang 2010 Abstract Judgment recognition and enforcement (JRE) between US sister states, between EU member states, and between Mainland China, Hong Kong, and Macao, are in the category of “interregional JRE.” This Dissertation is a comparative study and focuses on what lessons China can draw from the US and the EU to develop a Multilateral JRE Arrangement between Mainland China, Hong Kong, and Macao. iv Acknowledgements I am especially grateful to my supervisor Professor Ralf Michaels. In the whole S.J.D. program, he always had time for me even when he was away from Duke. He sometimes pushed me and sometimes pulled me. Without his guidance, this dissertation is impossible. I also deeply appreciate Professors Paul Carrington and Paul Haagen's supervision. "[T]he old has gone, the new has come!" (2 Corinthians 5:17) v Table of Contents Abstract..................................................................................................................iv Acknowledgement..................................................................................................v I. Introduction................................................................................................6 A. Introduction: Theme and Contribution of this Dissertation...................6 B. The Concept of Interregional JRE........................................................10 C. A Comparative Perspective..................................................................12 i. Introduction to the Method: Comparative Studies...................12 ii. Free Circulation of Judgments in the US.................................15 1. Historical Backgrounds................................................15 2. The Full-Faith-and-Credit-JRE System.......................18 iii. Free Circulation of Judgments in the EU.................................21 1. Historical Backgrounds................................................21 2. The Brussels I Regulation............................................23 iv. Current JRE System in China...................................................27 1. No Overarching Multilateral JRE Scheme and Insufficient Substantive Laws......................................29 2. JRE Impasse for Majority of Judgments between Mainland China and Hong Kong.................................30 D. The Need for, and Feasibility of, a Multilateral JRE Arrangement among Mainland China, Hong Kong, and Macao................................32 i. Need: Economic Integration....................................................32 ii. Feasibility.................................................................................35 1. Geographical, Cultural, and Historical Proximities.....35 2. Constitutional Framework Overarching Mainland China, Hong Kong, and Macao...............................................36 3. Contributions of the Existing Bilateral Arrangements.39 E. Structure of What Follows...................................................................42 II. Scholarly Achievements on Chinese Interregional Conflict of Laws..43 A. General Theory of Chinese Interregional Conflict of Laws.................43 i. The First Efforts.......................................................................44 ii. Pioneering Works.....................................................................48 iii. The Contemporary Scene.........................................................51 iv. Assessments.............................................................................55 B. Interregional Judgment Recognition and Enforcement.......................57 i. The First Efforts.......................................................................58 ii. Pioneering Works.....................................................................60 iii. The Contemporary Scene.........................................................64 iv. Assessments.............................................................................74 C. Comparative Studies............................................................................75 i. The First Efforts.......................................................................76 ii. The Contemporary Scene.........................................................79 iii. Assessments.............................................................................85 III. The Existing JRE System between Mainland China, Hong Kong, and Macao........................................................................................................87 1 A. Regional JRE Laws..............................................................................88 i. Mainland Regional JRE Law...................................................88 1. Legal Bases for JRE.....................................................89 a. Treaty/Arrangement: JRE Impasse for Judgments Outside of the Mainland-Hong Kong Arrangement.....................................................89 b. Reciprocity.......................................................92 2. Requirements for JRE..................................................93 3. Grounds for Refusing JRE...........................................94 a. Incompetent Indirect Jurisdiction.....................94 b. Unfair Procedures.............................................96 c. Res judicata......................................................96 d. Public Policy Exception...................................97 4. Conclusion....................................................................98 ii. Hong Kong Regional JRE Law................................................99 1. Legal Bases for JRE.....................................................99 a. The Foreign Judgments (Reciprocal Enforcement) Ordinance................................100 b. Common Law.................................................101 2. Requirements for JRE................................................102 3. Grounds for Refusing JRE.........................................103 a. Incompetent Indirect Jurisdiction...................104 b. Unfair Procedures...........................................108 c. Fraud...............................................................111 d. Res judicata....................................................114 e. Public Policy Exception.................................114 4. Conclusion..................................................................118 iii. Macao Regional JRE Law......................................................118 1. Legal Bases for JRE...................................................118 2. Requirements for JRE................................................119 3. Grounds for Refusing JRE.........................................119 a. Incompetent Indirect Jurisdiction...................121 b. Unfair Procedure............................................122 c. Res judicata....................................................123 d. Public Policy Exception.................................124 4. Conclusion..................................................................125 iv. Problems of Regional JRE Laws............................................126 B. Interregional JRE Laws......................................................................127 i. Mainland-Hong Kong Arrangement......................................127 1. Scope of the Arrangement..........................................128 a. Judgments in Civil and Commercial Cases....129 b. Monetary Judgments......................................130 c. Types of Judicial Awards...............................131 d. Levels of Courts.............................................132 e. Choice of Court Agreements..........................133 f. Interregional...................................................133 2. Requirement for JRE..................................................135 3. Grounds for Refusing JRE.........................................135 a. Invalid Choice of Court Agreement...............136 b. Wholly Satisfied Judgment............................137 2 c. Exclusive Jurisdiction....................................137 d. Unfair Procedure............................................139 e. Fraud...............................................................142 f. Res judicata....................................................143 g. Public Policy
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