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Issue 59
Editor's Note
The rule of law is the best business environment. The senior judges of the Shanghai court have begun a series of rule of law publicity activities tailored for more than 100 enterprises!
In order to implement the requirements of the education and rectification work of the second batch of political and legal contingents and to do a deep and solid job in the activity of "I do practical things for the masses", the Shanghai Municipal High People's Court led the First Intermediate Court, the Second Intermediate Court, the Third Intermediate Court, the Shanghai Maritime Court, the Shanghai Financial Court, and the Shanghai Railway Transportation Court to jointly hold a series of rule of law publicity activities of "Entering the Law into Hundred Enterprises and Protecting the People's Livelihood". Judges selected by the seven courts provide targeted and characteristic legal activities for more than 100 enterprises, such as foreign-related enterprises, returned overseas Chinese enterprises, enterprises in the Lingang New Area of the Free Trade Zone, financial enterprises, and small and medium-sized enterprises, in the form of public open days and legal lectures, and promote the construction of a law-based business environment through accurate judicial services.
"Under the influence of the epidemic, how can Chinese and foreign parties participate in the trial of maritime cases through online litigation services?"
"What are the precautions for the conclusion of jurisdiction clauses in foreign-related maritime contracts?"
"What is the judge's thinking on the handling of shipping insurance disputes?"
"What are the comments and suggestions on maritime implementation?"
……
At 10:30 a.m. on October 26, 2021, a symposium on the theme of "High-end Shipping Services and Enterprise Development" was held in the second floor courtroom of the Shanghai Maritime Court at No. 567 Yingchun Road, Pudong New Area. About 30 representatives from 20 units, including port and shipping units, shipping industry associations, shipping brokerage companies, and shipping insurance companies, were listening intently to the contents of the speakers on the stage, sometimes thinking with their heads bowed, and sometimes taking notes.
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On the occasion of the first anniversary of the establishment of the Shanghai Maritime Court's North Bund Trial Workstation, this symposium is a special activity of the Shanghai Maritime Court to carry out the practical activity of "I do practical things for the masses", and it is also the eighth special activity of the Shanghai Court "Law into Hundred Enterprises to Protect the People's Livelihood". The legal practice and execution of shipping insurance were explained in depth, and the hot legal issues that enterprise representatives were concerned about were answered on the spot.
"Who's in charge": Model Clauses for JurisdictionAlties
The terms of the jurisdiction agreement are manifestations of the autonomy of the parties to the contract, and the standardized agreement on the place of jurisdiction and the dispute resolution method are conducive to the parties avoiding jurisdiction disputes and resolving disputes more efficiently and reasonably. At the previous consultation forum, many representatives of shipping companies mentioned that the jurisdiction clause in foreign-related contracts can easily become an obstacle to dispute resolution, and it is hoped that by agreeing on the terms of the jurisdiction agreement, the dispute can be resolved in China, reducing the high cost of enterprises responding to lawsuits outside the territory, identifying foreign laws, etc., and also protecting the expectations of their own litigation jurisdiction interests.
In order to help the parties effectively avoid procedural delays due to jurisdiction issues, Judge Gu Xiaofei of the Case Filing Division introduced the content and application of the model clauses in detail in conjunction with the newly launched Chinese and English versions of the Model Clauses on Jurisdiction of Maritime And Maritime Dispute Litigation of the Shanghai Maritime Court and the supporting Recommended Texts and Application Tips.
Judge Gu Xiaofei went straight to the point and set out the role of the three texts, and according to different applicable circumstances, he introduced the content of the model clauses in detail, and explained the conditions for determining that the Shanghai Maritime Court had jurisdiction over the case under different types of model clauses, so as to facilitate the parties to better understand and correctly apply them.
"How to Sue": A Guide to Online Litigation Services
Recently, the Shanghai Maritime Court has also launched a series of "Online Litigation Service Guides", covering online operation methods for each link of the litigation process such as case filing, preservation, service, material submission, contact with judges, file reading, online trial, online mediation, etc.
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I hope to take this seminar as an opportunity to help parties and agents further understand the Shanghai Maritime Court's "Online Litigation Service Guide", so as to more quickly grasp the online litigation operation process and steps.
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Chen Yi, assistant judge of the Shanghai Maritime Court's case filing division, said.
As the keynote speaker, she not only introduced the handling method of online litigation to the participants, but also explained in detail the problems that are easy to be ignored by the parties or agents in the operation, such as applying for handling in the name of the company, using the "legal person one certificate" issued by the CA certification center to log in to the party (legal person) platform through the web terminal to operate, the electronic litigation materials submitted should be in pdf format with a list of evidence, and the online application for preservation should pay attention to checking the corresponding preservation category.
Under the normalization of epidemic prevention and control, the online litigation method has been adopted by more and more parties and agents, and the way of special lectures to enhance the shipping enterprises' understanding of the online litigation service process of the Shanghai Maritime Court can help them truly "understand" and "use" online litigation.
Law and Reason: Shipping Insurance Disputes
Another highlight of the symposium was the introduction of the legal practice of shipping insurance by Xie Zhenguan, president of the Maritime Affairs Division of the Shanghai Maritime Court. With more than 20 years of maritime trial experience, President Xie Zhenjian is very familiar with trials in the fields of shipping finance and insurance, and is a veritable "old master". After visiting and investigating industry associations and shipping enterprises, he explained the key issue of "shipping insurance" in the industry, and introduced in detail the judge's thinking on the trial of marine insurance disputes, as well as the insurer's obligation to explain and the insured's obligation to inform.
"Whether it is a dispute over a ship insurance contract or a dispute over a cargo insurance contract, the first step for a judge to hear a case is to review the legal relationship and first see whether the original and defendant's marine insurance contracts are established. In some cases, if the two parties have no dispute over the existence of a marine insurance contractual relationship, they will enter the next step, but in some cases, the dispute will focus on the first step..." President Xie Zhenjian dismantled the idea of hearing marine insurance disputes one by one, so that the delegates attending the meeting could understand the key points in the trial of marine insurance cases.
"If the insurer fails to perform the obligation of explanation, the exemption clauses and exclusions in the insurance policy are invalid; if the insured fails to perform the obligation to inform, it will affect the realization of its own insurance rights and interests." President Xie Zhenjian succinctly explained the importance of the obligation to explain and inform, and the insurance companies participating in the lecture and the shipowners, shipyards, ports, and cargo owners who were insured all looked sideways and listened carefully.
President Xie Zhenzhen not only summarized the main points and review steps of the judges in hearing shipping insurance dispute cases, but also combined various typical cases to explain in a simple and concise manner for the delegates attending the meeting, and made key points for enterprises to correctly understand the rights and obligations of shipping insurance contracts.
Q&A: Answer questions and resolve disputes
Based on the practice of the lecture topic selection, meticulous operation instructions, whiplash legal analysis, vivid and vivid case explanation, sincere and pertinent key points, so that the three lectures of the "high-end shipping services and enterprise development" symposium have received a warm response from the guests. In addition, the judges of the Shanghai Maritime Court also had in-depth exchanges with the participants on the lien on the port cargo and the judicial confirmation of arbitral awards.
Some of the delegates consulted the judges of the Shanghai Maritime Court about the difficulties encountered in the recent legal work: after the enterprise exercised the right of retention over the debtor's goods as a creditor, the goods were applied for preservation by other creditors. In this case, can the enterprise dispose of the goods within the scope of the lien? If other creditors apply for auction of goods, can the enterprise receive priority in repayment? Geng Peiyu, director of the Executive Bureau of the Shanghai Maritime Court, first clarified to the delegates that if the lien goods are seized by the court, the lien holder shall not dispose of it himself in principle; the right to dispose of it usually belongs to the first court, and if the enterprise has applied for enforcement in the Shanghai Maritime Court, it can request the Shanghai Maritime Court to negotiate with the first court, and can also require the first court to dispose of the preserved goods, if other claims are ordinary claims, its first priority is inferior to the right of retention and mortgage. At the symposium, Director Geng Peiyu also issued a "Letter of Consultation on Prominent Issues in the Field of Enforcement" to the delegates attending the meeting, widely soliciting the opinions and suggestions of the industry on the enforcement work of the Shanghai Maritime Court.
Some delegates raised questions about the application for property preservation in overseas arbitration in China: if the business entities of the two parties to the contract are located in Hong Kong and Shanghai respectively, and the two parties agree in the ship sale contract that a dispute arises, the hong Kong law shall be applied to the arbitration in Hong Kong. Can the arbitration be applied for in the Mainland through the Arrangement of the Supreme People's Court concerning Mutual Assistance in Interim Measures between the Courts of the Mainland and the Hong Kong Special Administrative Region in Respect of Arbitral Proceedings (hereinafter referred to as the "Arbitration Preservation Arrangement") in the Mainland? Wei Yang, President of the Case Filing Division of the Shanghai Maritime Court, answered the questions in detail, pointing out that according to the Arrangement for Arbitration Preservation, only if an arbitration institution jointly confirmed by the Supreme People's Court and the HKSAR Government arbitrates, a mainland court can accept an application for non-maritime property preservation. Therefore, the focus of this case is whether the arbitration belongs to the arbitral institution jointly confirmed above. Finally, President Wei Yang reminded the enterprise to pay attention to the terms of the jurisdiction agreement of the contract, so as to protect its litigation rights and interests.
Gao Yi, a deputy to the Shanghai Municipal People's Congress, fully affirmed the effectiveness of the symposium: "Today's special lecture has enhanced everyone's understanding of the laws and regulations on maritime affairs and the judges' adjudication ideas, and embodies the pragmatic and people-friendly work style of the Shanghai Maritime Court. By sorting out typical disputes and prompting the contract terms, it can help enterprises reduce contradictions and disputes. I believe that the Shanghai Maritime Court will escort the construction of Shanghai International Shipping Center with high-quality maritime judicial services. ”
"The dry goods are full and the harvest is great!" Zhang Lei, legal manager of the investment and development department of Shanghai Port Group, said bluntly that today's lecture has a lot of inspiration for enterprises. "Enterprises participate in case filing and trial through online litigation services, saving a lot of time and manpower and material resources. The principles, obligations and main points related to marine insurance explained in the shipping insurance seminar also play an important guiding role in the conclusion of our insurance contracts. ”
Source| Shanghai Maritime Court
Text: Li Sirun, Wei Xiaoxin
Photo: Zhou Chenjia
Video Producer: Xi Xiaoshi
Responsible editor | Qiu Yue