“Disputes arising in the course of the performance of this Contract between [Mr Qing Li] and [Mr Yuan (for the loan agreement)/Ms Gao (for the guarantee)] be resolved by mutual consultation. If the negotiation fails, a lawsuit will be filed with [the Baixia District Court].”
“If [Mr Yuan (for the loan agreement)/Ms Gao (for the guarantee)] changes its residential address, correspondence address, contact telephone number and other matters, it shall notify [Mr Qing Li] in writing within 24 hours after the relevant matters are changed.”
“Any dispute arising out of or in connection with the performance of this Agreement must be resolved by the Parties through amicable consultation or, if such consultation fails, by a competent people’s court.”
“Any Party shall give the other Parties written notice as set out in Section 9.1 of any change to its specified correspondence address or contact information. Any notice delivered to its original address by another Party before the latter receives such notice of change will be deemed given, and the Party changing its correspondence address or contact information shall be liable for any damage or liability thus caused.”
“The Parties shall first try to resolve any dispute arising out of or in relation to this Agreement or the Master Agreement through negotiation and may, if such negotiation fails, bring an action before a people’s court located where the agreement is signed.”
“First, the question is whether the judgment debtor agreed to submit to the jurisdiction of the foreign court. Second, the agreement does not have to be contractual in nature. The real question is whether the judgment debtor consented in advance to the jurisdiction of the foreign court. This point was made by Goff LJ in SA Consortium General Textiles v Sun and Sand Agencies Ltd[1978] QB 279 , 303, who said that the expression ‘agreed … to submit to the jurisdiction’ in theForeign Judgments (Reciprocal Enforcement) Act 1933, section 4(2)(a) (iii), meant ‘expressed willingness or consented to or acknowledged that he would accept the jurisdiction of the foreign court. It does not require that the judgment debtor must have bound himself contractually or in formal terms so to do’. Third, it is commonplace that a contractual agreement or a consent may be implied or inferred. Fourth, there is no reason in principle why the position should be any different in the case of a contractual agreement or consent to the jurisdiction of a foreign court: cf Briggs, Civil Jurisdiction and Judgments, 6th ed, para 7.59. … Fifth, on analysis in context the authorities which deny the possibility of an implied agreement (especially Sirdar Gurdyal Singh v Rajah of Faridkote) really meant that there had to be an actual agreement (or consent). Thus where a person became a shareholder in a foreign company, ‘to all intents and purposes, it is as if there had been an actual and absolute agreement’ by the shareholder to the provisions for suit and service in its constitution: Copin v Adamson at 18-19.”
“Terms implied as a matter of fact depend on construction of the contract in the light of the circumstances. Where the applicable law of the contract is foreign law, questions of interpretation are governed by the applicable law. … In such a case the role of the expert is not to give evidence as to what the contract means. The role is ‘to prove the rules of construction of the foreign law, and it is then for the court to interpret the contract in accordance with those rules’: King v Brandywine Reinsurance Co[2005] EWCA Civ 235 ,[2005] 1 Lloyd’s Rep 655 , para 68; Dicey, paras 9-019 and 32-144 (‘the expert proves the foreign rules of construction, and the court, in the light of these rules, determines the meaning of the contract’).”
“Where the parties have a dispute over the interpretation of a contractual clause, the true meaning of the clause shall be determined in light of the wording used in the contract, the relevant provisions of the contract, the purpose of the contract, trade usages, and the principle of good faith.”
“The parties to a contractual dispute or other property dispute may agree in writing to be subject to the jurisdiction of the people’s court at the place having connection with the dispute, such as where the defendant is domiciled, where the contract is performed, where the contract is signed, where the plaintiff is domiciled or where the subject matter is located, provided that such agreement does not violate the provisions of this Law on jurisdiction by forum level and on exclusive jurisdiction.”
“4 Cases in which registered judgments must, or may, be set aside. … (2) For the purposes of this section the courts of the country of the original court shall, subject to the provisions of subsection (3) of this section, be deemed to have had jurisdiction— (a) in the case of a judgment given in an action in personam— (iv) if the judgment debtor, being a defendant in the original court, was at the time when the proceedings were institutedresident in, or being a body corporate had its principal place of business in, the country of that court …” (a) in the case of a judgment given in an action in personam— (iv) if the judgment debtor, being a defendant in the original court, was at the time when the proceedings were institutedresident in, or being a body corporate had its principal place of business in, the country of that court …”
“So far as the position in England is concerned, the change suggested by the Committee is one of procedure rather than of substance, and involves no radical alterations of the present position. Though the existing procedure by action on a foreign judgment will, under our recommendations, be replaced by a system under which foreign judgments will be registered and, when registered, enforced as if they were the judgments of an English court, the defendant in this country will be able- to resist registration on substantially the same grounds as those on which he can now maintain that a foreign judgment should not support an action. This system already applies under Part II of the Administration of Justice Act, 1920, to the judgments of a large number of His Majesty’s dominions, and our recommendations provide for the extension to the judgments of selected foreign countries, in return for reciprocal treatment for United Kingdom judgments, of a procedure substantially similar to that now applicable under the Act of 1920 to the judgments of Dominion and Colonial courts.”
“It was, however, desirable that such legislation, in laying down the conditions under which, in return for reciprocal treatment, the judgments of foreign countries should be enforced, should not depart from the substantive principles of the common law applicable to foreign judgments in general.”
“In the arrangements to be made, in return for reciprocal treatment, for the recognition and enforcement in the United Kingdom of the Judgments of foreign countries, the existing principles of the common law should be followed in matters of substance …”
“This clause deals with the setting aside of the registration of a foreign judgment. In sub-section (1)(a) of the clause there are enumerated the circumstances in which the Court must, upon the application of the judgment Debtor, set aside the registration. These circumstances correspond in the main with the grounds upon which an action upon a foreign judgment can at present be successfully resisted at Common Law. … In sub-section 1(b) of the clause there is set out an additional ground upon which the Court may at its discretion set aside the registration of the judgment, namely, if the judgment is in respect of a subject matter which has already formed the subject of a final and conclusive judgment by another court having jurisdiction in the matter. It will be observed that one of the cases in which the registration of the judgment must be set aside is where the Courts of the country in which the judgment was given had no jurisdiction and in sub-section (2) of Clause 4 are set out the circumstances in which the Courts of the country in which judgment was given shall be deemed to have jurisdiction. In paragraph (a) of the sub-section the rules for determining this jurisdiction, in the case of actions in personam, are set out at length and are substantially in accordance with the existing Common Law Rules … . It was, however, found desirable and necessary, in order to secure international agreements which would be likely to operate satisfactorily in practice, to make one or two very slight departures from the Common Law Rules.”
“Sub-paragraph iv reproduces the existing rule that the Court has jurisdiction where the defendant was resident within the jurisdiction, or, in the case of a body corporate, had its principal place of business there.”
“There is divergence of authority on the question whether presence, as distinct from residence, is a sufficient basis of jurisdiction in relation to natural persons. The older cases acknowledge that the residence of a defendant in the country at the time when proceedings are commenced gives that court jurisdiction over the defendant at common law. … The position is the same under … the 1933 Act, … .”
“One cannot ascertain what the common law is by arguing backwards from the provisions of the statute.”
“I wish to add a few observations on the ‘presence or residence’ issue, because I was a party to the decision of this court in Adams v Cape Industries Plc[1990] Ch 433 and am conscious that that decision left unanswered at least one important issue of law which may be highly relevant in the present case, because it is common ground that Mr Murjani was not present in New York at the time when the New York proceedings were issued or when they were served. In the Adams case this court, after reviewing the authorities, extracted three principles (at pp 517H-518C): ‘First, in determining the jurisdiction of the foreign court in such cases, our court is directing its mind to the competence or otherwise of the foreign court ‘to summon the defendant before it and to decide such matters as it has decided:’ see Pemberton v Hughes[1899] 1 Ch 781 , 790, per Lindley MR. Secondly, in the absence of any form of submission to the foreign court, such competence depends on the physical presence of the defendant in the country concerned at the time of suit. (We leave open the question whether residence without presence will suffice.) From the last sentence of the dictum of Lord Parmoor cited above, and from a dictum of Collins MR in Dunlop Pneumatic Tyre Co Ltd v Actien-gesellschaft fur Motor und Motorfahrzeugbau vorm Cudell & Co[1902] 1 KB 342 , 346, it would appear that the date of service of process rather than the date of issue of proceedings is to be treated as ‘the time of suit’ for these purposes. But nothing turns on this point in the present case and we express no final view on it. Thirdly, we accept the submission of Sir Godfray Le Quesne (not accepted by Mr Morison) that the temporary presence of a defendant in the foreign country will suffice provided at least that it is voluntary (i.e. not induced by compulsion, fraud or duress).’ A little later (at p 519A) we said: ‘while the use of the particular phrase “temporary allegiance” may be a misleading one in this context, we would, on the basis of the authorities referred to above, regard the source of the territorial jurisdiction of the court of a foreign country to summon a defendant to appear before it as being his obligation for the time being to abide by its laws and accept the jurisdiction of its courts while present in its territory.’ Speaking only for myself, in the Cape case I left open the question whether residence without presence at the time of suit would suffice to found the jurisdiction of the foreign court, not only because it was unnecessary for the decision but also because, despite the benefit of comprehensive argument, I found it a very difficult one. The difficulty arose partly because ‘residence’ is a somewhat flexible word, which may bear rather different meanings in different contexts, and also because, in many of the earlier cases cited to us, the court had apparently envisaged the word ‘residence’ as including physical presence, without directing its mind to the situation where there was no physical presence. (As was pointed out in the judgment of the court at p 515F, residence will much more often than not import physical presence). I, for my part, strongly incline to the view that, in broad terms, if a person for the time being has his principal home in a foreign country, albeit without being a subject of that country, his mere temporary absence would not deprive the local court of jurisdiction under English conflict of law rules. I am disposed to think that, notwithstanding his temporary absence, he would remain under an obligation to accept the jurisdiction of the foreign court – in other words, he would be deemed to have continued presence there.”
“25. Two strands of reasoning appear in the authorities. The first is the notion that a person who takes advantage of the protection given by the law of a particular State is equally subject to its jurisdiction, whether he takes advantage of it by virtue of presence or residence. The second concept is that of amenability to be summoned by the court in the context of service of proceedings which, as a matter of history in this jurisdiction, previously required personal service. Thus it is that in Adams v Cape, Slade LJ left open the question as to whether residence without presence would suffice for the purpose of recognising a foreign court’s jurisdiction. 26. So far as the former concept is concerned, a person with residence in a given jurisdiction relies on, and obtains, the protection of the courts of that jurisdiction and thus owes what is often referred to as ‘territorial allegiance’. In my judgment, he does so more strongly than a visitor, who can be served personally with proceedings. The case for jurisdiction over a resident, as opposed to a person who is temporarily present in a particular jurisdiction, is therefore, more weighty. 27. So far as service is concerned, it is to be noted that sinceCPR 6.13 and 6.15, service of claim forms in this country is now normally effected by the courts by sending it to the last known address of the defendant, being, in the case of an individual defendant, his last known residence. It seems that part of the reasoning for the reservation of Slade LJ with regard to residence sufficing for recognition of a foreign judgment, as a matter of English private international law, therefore, may have disappeared.”
“It seems to me that if presence is an adequate basis for recognition of a foreign court’s jurisdiction, it is an a fortiori case if there is residence, certainly if the defendant’s main residence is within that jurisdiction and the defendant is merely absent on a temporary basis from that jurisdiction at the time proceedings are instituted or served.”
“8. The first edition of Dicey in 1896 stated (rule 80) that the foreign court would have jurisdiction if ‘the defendant was resident [or present?]’ in the foreign country ‘so as to have the benefit, and be under the protection, of the laws thereof’. By the 6th edition in 1949 the formula was repeated by Professor Wortley (rule 68) but without the doubt about presence as a basis of jurisdiction. In the 8th edition in 1967 Dr (later Professor) Clive Parry removed the phrase (then rule 189) about the benefit and protection of the foreign country’s laws. The rule, subsequently edited by Dr Morris and then by Professor Kahn-Freund, remained in that form until the decision in Adams v Cape Industries plc[1990] Ch 433 (CA), which established that presence in the foreign jurisdiction, as opposed to residence, was a sufficient basis for the recognition of foreign judgments. Then, edited by myself and later by Professor Briggs, the rule took substantially its present form in the 12th edition in 1993. 9. The theoretical basis for the enforcement of foreign judgments at common law is that they are enforced on the basis of a principle that where a court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment may be maintained: Williams v Jones (1845) 13 M & W 628, 633, per Parke B; Godard v Gray (1870) LR 6 QB 139, 147, per Blackburn J; Adams v Cape Industries plc[1990] Ch 433 , 513 and Owens Bank Ltd v Bracco[1992] 2 AC 443 , 484, per Lord Bridge of Harwich. As Blackburn J said in Godard v Gray, this was based on the mode of pleading an action on a foreign judgment in debt, and not merely as evidence of the obligation to pay the underlying liability: LR 6 QB 139, 150. But this is a purely theoretical and historical basis for the enforcement of foreign judgments at common law. It does not apply to enforcement under statute, and makes no practical difference to the analysis, nor, in my judgment, to the issues on these appeals. 10. Consequently, if the judgments in issue on the appeals are regarded as judgments in personam within the Dicey rule, then they will only be enforced in England at common law if the judgment debtors were present (or, if the 1933 Act applies, resident) in the foreign country when the proceedings were commenced, or if they submitted to its jurisdiction.”
“the UK Supreme Court held, in summary, that at common law a foreign judgment in personam would be enforced in England only if the judgment debtor had been present in the foreign country when the proceedings had been commenced, or if it had submitted to its jurisdiction; … .”
“From time to time it was suggested that the common law required the defendant to be resident, rather than present, within the territorial jurisdiction of the foreign court. At first sight, residence may be thought to indicate a stronger and more durable connection with a particular place than does presence, which may be fleeting or transitory or even involuntary, … and it may therefore be deduced that residence is a more satisfactory basis for recognising a foreign judgment. However, in Adams v Cape Industries Plc, … the Court of Appeal held that the presence of the defendant was sufficient, while leaving open the question whether residence without presence would also suffice.20 The court suggested, though had no need to decide, that the relevant time was that of the service of process, this on the presumed footing that it represents the effective start of legal proceedings.21 The Supreme Court in Rubin v Eurofinance SA 22 restated the law in terms of presence, noting without objection that any reference to ‘residence’ had been dropped from the statement of the law in Dicey;23 and in Vizcaya Partners Ltd v Picard 24 the Privy Council simply referred to presence as the alternative to submission. The law is now settled: presence, not residence, is the test. In any event, the arguments in favour of presence are overwhelming. In terms of principle, the doctrine of comity, according to which the rules of private international law respect and give effect to exercises of sovereign authority over things within the territorial jurisdiction of the sovereign, easily accepts that if a person is present within the territory of a foreign sovereign, exercises of that authority over him should be respected and, within limits, given effect afterwards: what is true for things is true also for persons. Territoriality is the very foundation of the common law rules of private international law. … And as a matter of practicality, although most people know where they are present, or were present, on any given day, … it may be far more difficult to decide where someone is or is not resident on the same day. Take the foreign student who is in Oxford during term, and back home in the vacation, or even on holiday during the vacation: where is she resident 27 on Monday of the sixth week of term? In Oxford? Possibly. At home, overseas, where her things and family are? Possibly also. But in neither case can it be said to be certain. What of the person who is subject to immigration control but who has indefinite leave to remain: is she still resident in England if she goes overseas for a month? For three months? For a year? On a two-year secondment? With no return flight booked? Until covid restrictions are lifted? The purpose of the rule, so far as the common law is concerned, is to allow the reasonably well-informed defendant to be able to decide, usually under pressure of time, whether he should appear before and defend the proceedings brought against him before a foreign court. From that perspective, a legal lest which asks or requires him to ask, whether he might later be considered to have been resident in that country on the day the proceedings were instituted would be unfit for the purpose for which it was needed. No more should be heard of it. It may be well intentioned, but it is badly misconceived. ____________________________ … 20 At 518. In State Bank of India v Murjani Marketing Group Ltd (unreported,27 March 1991 ), the Court of Appeal stated, obiter, that residence without physical presence at the material time would still suffice to make the court jurisdictionally competent. Sir Christopher Slade suggested that such a defendant ‘would be deemed to have continued presence’ in the place; Taylor LJ noted that there was still scope for argument; and Fox LJ agreed with both. This falls far short of being a decision. Of course, if the defendant elects to enter an appearance and submit to the jurisdiction the point becomes academic. 21 At 518. 22[2012] UKSC 46 ,[2013] 1 AC 236 . 23 Dicey, Morris & Collins, The Conflict of Laws, 15th edn (Sweet & Maxwell, London, 2012), Rule 43, First Case. 24[2016] UKPC 5 [2016] 1 All ER (Comm) 891. … 27 If one reformulates the question to ask whether she is ‘a resident’ in Oxford on that same date, the answer may incline more to the negative. It is all best avoided.”
“(1) It is possible for a defendant to reside in more than one jurisdiction at the same time. (2) It is possible for England to be a jurisdiction in which a defendant resides even if it is not his principal place of residence (i.e. even if he spends most of the year in another jurisdiction). (3) A person will be resident in England if England is for him a settled or usual place of abode. A settled or usual place of abode connotes some degree of permanence or continuity. (4) Residence is not to be judged according to a ‘numbers game’ and it is appropriate to address the quality and nature of a defendant’s visits to the jurisdiction. (5) Whether a defendant’s use of a property characterises it as his or her ‘residence’, that is to say the defendant can fairly be described as residing there, is a question of fact and degree. (6) In deciding whether a defendant is resident here, regard should be had to any settled pattern of the defendant’s life in terms of his presence in England and the reasons for the same. (7) If a defendant visits a property in England on a regular basis for not inconsiderable periods of time, where his wife and children live, in order to see his wife and children (including where the centre of the defendant’s relationship with his children is England), such property has the potential to be regarded as the family home or his home when in England, which itself is evidence which may go towards supporting the conclusion that England is for him a settled or usual place of abode, and that he is resident in England, albeit that ultimately it is a question of fact and degree whether he is resident here or not, having regard to all the facts of the case including any discernible settled pattern of the defendant’s life or as it has also been put according to the way in which a man’s life is usually ordered.”