Foreign-related preliminary questions in cross-border disputes

By Yvonne Lu, Martin Hu & Partners
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With the flood of new-type foreign-related cases in cross-border disputes, a Chinese court may face difficulties dealing with the preliminary question. In the trial of foreign-related case A where the Chinese court has jurisdiction but the case is dependent on the outcome of the trial of case B pending in another jurisdiction, or if the Chinese court has jurisdiction over case B but trial by a Chinese court is deemed inconvenient, how should a Chinese court deal with the preliminary question?

Yvonne Lu Counsel Martin Hu & Partners
Yvonne Lu
Counsel
Martin Hu & Partners

In the first part of this article published in the previous issue, the author analyzed the circumstances under which preliminary questions could be involved by examining two examples, particularly looking at cross-border dispute cases in which the author had acted as counsel. In continuation, the author proposes to summarize the two situations of preliminary questions, the governing law, the method of resolution and adjudication steps by taking into account the views of theoretical circles, real-world cases presented in the previous issue and the adjudication experience of judges.

PRELIMINARY QUESTIONS

Two situations. Preliminary questions in private international law can be: (1) the principal question is subject to domestic law and the preliminary question is a foreign-related legal question, and (2) both the preliminary question and the principal question are foreign-related legal questions. Both of the company licence/certificate return cases presented in the previous issue fall into the former category.

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Yvonne Lu is a counsel at Martin Hu & Partners

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