随着内地与香港经贸往来、投资合作日益紧密，跨境民商事纠纷频发，非对称管辖协议在跨境合同中广泛应用。非对称管辖，又称“单边管辖”，特指合同双方约定一方可在多个法域法院选择管辖，另一方仅能向单一特定法域法院起诉的安排。此种模式打破传统对等原则，其效力认定及相关判决的跨境承认与执行，成为跨境纠纷解决的重点难点。内地与香港分属大陆法系与普通法系，司法规则差异显著，结合律师实务经验与典型案例，系统梳理该问题具有重要理论与现实意义。

With the increasingly close economic and trade exchanges and investment cooperation between the Chinese Mainland and the Hong Kong Special Administrative Region (HKSAR), cross-border civil and commercial disputes have occurred frequently, and asymmetric jurisdiction agreements have been widely adopted in cross-border contracts. Asymmetric jurisdiction, also known as "unilateral jurisdiction", refers to an arrangement whereby the parties to a contract agree that one party may select competent courts from multiple jurisdictions to institute legal proceedings, while the other party may only institute proceedings in the court of a single specific jurisdiction. This model breaks the principle of reciprocity under traditional jurisdiction agreements, and the determination of its validity, as well as the cross-border recognition and enforcement of judgments rendered pursuant to such agreements, have become key and difficult issues in the resolution of cross-border disputes. The Chinese Mainland and Hong Kong belong to the civil law system and the common law system respectively, with distinct judicial rules. Systematically sorting out this issue in combination with lawyers' practical experience and typical cases is of great theoretical and practical significance.

Core Definition of Asymmetric Jurisdiction and Its Application Status in the Mainland and Hong Kong

（一）非对称管辖的法律内涵与特征

1.1Legal Connotation and Characteristics of Asymmetric Jurisdiction

非对称管辖协议的核心是“管辖选择权不平等”，本质是当事人基于谈判地位、风险防控需求，对诉讼管辖权利的非对等处分。其仍属协议管辖范畴，成立生效需遵循意思自治、不违反专属管辖、不违背公共利益等基本原则，但明确放弃双方管辖权利对等性，赋予一方更大诉讼便利。实践中，多表现为优势方（如跨国企业、债权人）可选择两地或多地法院，弱势方（如中小企业、债务人）仅能向特定法域法院起诉，背后是双方谈判地位的差异。

The core of an asymmetric jurisdiction agreement is the "inequality of the right to choose jurisdiction", which in essence is the unequal disposition of the right to select litigation jurisdiction by the parties based on their negotiating positions and risk prevention needs. It still falls within the scope of agreed jurisdiction, and its formation and entry into force shall comply with basic principles such as party autonomy, non-violation of exclusive jurisdiction and non-contravention of public interests. However, it explicitly abandons the equality of the parties' right to choose jurisdiction and endows one party with greater litigation convenience. In practice, it is mostly manifested in that the dominant party (such as a multinational enterprise or a creditor) may choose courts in two or more jurisdictions, while the disadvantaged party (such as a small and medium-sized enterprise or a debtor) may only institute proceedings in the court of a specific jurisdiction, which stems from the difference in the negotiating positions of the two parties.

（二）内地与香港非对称管辖的适用场景

1.2Application Scenarios of Asymmetric Jurisdiction in the Mainland and Hong Kong

随着内地与香港跨境投资、贸易、金融合作的深化，非对称管辖协议已广泛应用于各类跨境合同中，尤其集中在以下场景：一是跨境金融领域，如内地银行与香港企业的贷款、担保合同，通常约定银行可选择内地或香港法院管辖，而借款人仅能向香港法院管辖；二是跨境买卖合同领域，如香港拍卖行与内地竞拍人签订的拍卖契约，约定拍卖行可选择向内地法院起诉，竞拍人仅能向香港法院管辖；三是跨境服务合同领域，如香港中介机构与内地企业签订的咨询服务合同、代理合同，约定中介机构可选择两地法院管辖，内地企业仅能向香港法院管辖；四是跨境投资领域，如内地企业赴香港上市、并购过程中签订的相关协议，约定投资方可选择香港法院管辖，融资方仅能向内地特定法院管辖。

With the deepening of cross-border investment, trade and financial cooperation between the Chinese Mainland and Hong Kong, asymmetric jurisdiction agreements have been widely applied in various cross-border contracts, especially in the following scenarios: first, the cross-border financial field, such as loan and guarantee contracts signed between mainland banks and Hong Kong enterprises, which usually stipulate that the bank may choose a court in the Mainland or Hong Kong for jurisdiction, while the borrower may only be subject to the jurisdiction of Hong Kong courts; second, the cross-border sales contract field, such as auction contracts signed between Hong Kong auction houses and mainland bidders, which stipulate that the auction house may choose to institute proceedings in mainland courts, while the bidder may only institute proceedings in Hong Kong courts; third, the cross-border service contract field, such as consulting service contracts and agency contracts signed between Hong Kong intermediaries and mainland enterprises, which stipulate that the intermediary may choose courts in both jurisdictions, while the mainland enterprise may only institute proceedings in Hong Kong courts; fourth, the cross-border investment field, such as relevant agreements signed during the process of mainland enterprises listing or conducting mergers and acquisitions in Hong Kong, which stipulate that the investor may choose Hong Kong courts for jurisdiction, while the financier may only be subject to the jurisdiction of a specific mainland court.

Determination of the Validity of Asymmetric Jurisdiction from a Multijurisdictional Perspective

非对称管辖协议的效力是解决跨境纠纷的前提——只有认定管辖协议有效，相关法院才能取得管辖权，并依据该管辖作出判决；若认定管辖协议无效，则需按照法定管辖规则确定管辖法院。由于内地与香港分属不同的法律体系，对非对称管辖协议效力的认定标准存在差异，这也导致同一非对称管辖协议，可能在内地被认定为有效，在香港被认定为无效，或反之，给跨境纠纷解决带来极大困扰。以下结合两地法律规定与司法实践，分别分析非对称管辖协议的效力认定规则。

The validity of an asymmetric jurisdiction agreement is the prerequisite for resolving cross-border disputes—only when the jurisdiction agreement is determined to be valid can the relevant court acquire jurisdiction and render a judgment based on such jurisdiction; if the jurisdiction agreement is determined to be invalid, the competent court shall be determined in accordance with statutory jurisdiction rules. Due to the fact that the Chinese Mainland and Hong Kong belong to different legal systems with different criteria for determining the validity of asymmetric jurisdiction agreements, the same asymmetric jurisdiction agreement may be determined to be valid in the Mainland but invalid in Hong Kong, or vice versa, which brings great troubles to the resolution of cross-border disputes. The following analyzes the rules for determining the validity of asymmetric jurisdiction agreements in combination with the legal provisions and judicial practices of the two jurisdictions respectively.

（一）内地法院对非对称管辖协议的效力认定

2.1Determination of the Validity of Asymmetric Jurisdiction Agreements by Mainland Courts

内地涉港纠纷参照涉外案件处理，核心依据是《中华人民共和国民事诉讼法》（以下简称《民事诉讼法》）及相关司法解释，认定遵循“意思自治优先、兼顾公平与公共利益”原则，核心审查四点：一是意思表示真实，弱势方以“缺乏谈判能力、显失公平”主张无效的，法院通常不予支持，除非符合“一方利用对方危困、缺乏判断能力”的严格条件；二是不违反专属管辖，如涉港不动产纠纷，约定香港法院管辖的部分无效；三是不违背公共利益，主要指国家主权、司法主权，单纯权利不对等不构成违背；四是符合书面形式要求，依据最高人民法院发布的《关于内地与香港特别行政区法院相互认可和执行当事人协议管辖的民商事案件安排》（以下简称“《安排》”），涉港协议管辖需采用合同书、数据电文等书面形式。

司法实践中，内地法院受理的涉港相关案件逐年增多，如广州市中级人民法院审理的（2013）穗中法民四终字第11号富邦财务（香港）有限公司与广东鑫泰科技集团有限公司等融资租赁合同纠纷案、厦门市中级人民法院审理的（2014）厦民初字第110号大新银行有限公司与香港千帆印刷公司等合同纠纷案、海口海事法院受理的（2019）琼72行保2号恒安航运有限公司与富恒船务有限公司的船舶融资租赁合同纠纷案等案件中，内地法院均认为相应系争合同中关于管辖的约定不违反中国法律规定，进而认可了非对称管辖的效力。

综上，内地法院对非对称管辖协议的效力认定较为宽松，尊重当事人的意思自治，仅在违反专属管辖、违背公共利益、意思表示不真实或形式不合法的情况下，才会认定协议无效。这一立场在《全国法院涉外商事海事审判工作座谈会会议纪要》中得到明确体现，该纪要规定，一方可从多国法院中选择起诉，另一方仅能向特定国法院起诉，当事人以显失公平为由主张管辖协议无效的，人民法院不予支持。

Disputes involving Hong Kong in the Mainland are handled with reference to foreign-related cases, with the Civil Procedure Law of the People's Republic of China (hereinafter referred to as the Civil Procedure Law) and relevant judicial interpretations as the core legal basis. The determination follows the principle of "party autonomy in the first place, with fairness and public interests taken into account", with four core examination points: first, the authenticity of the expression of intent. Where the disadvantaged party claims the invalidity of the agreement on the ground of "lack of negotiating capacity or obvious unfairness", the court usually shall not support such a claim, unless the strict conditions of "one party taking advantage of the other party's distress or lack of judgment capacity" are met; second, non-violation of exclusive jurisdiction. For example, in a cross-border real estate dispute involving Hong Kong, the part of the agreement stipulating the jurisdiction of Hong Kong courts shall be invalid; third, non-contravention of public interests, which mainly refers to national sovereignty and judicial sovereignty, and the mere inequality of rights shall not constitute a contravention of public interests; fourth, compliance with the written form requirement. In accordance with the Arrangement between the Mainland and the Hong Kong Special Administrative Region for the Mutual Recognition and Enforcement of Judgments in Civil and Commercial Cases with Agreed Jurisdiction (hereinafter referred to as the Arrangement) issued by the Supreme People's Court, agreed jurisdiction involving Hong Kong shall adopt a written form such as a contractual document and data message.

In judicial practice, the number of cases involving Hong Kong accepted by mainland courts has been increasing year by year. For example, in the financial lease contract dispute between Fubon Finance (Hong Kong) Co., Ltd. and Guangdong Xintai Technology Group Co., Ltd. heard by the Guangzhou Intermediate People's Court, the contract dispute between Dah Sing Bank Limited and Hong Kong Qianfan Printing Company heard by the Xiamen Intermediate People's Court, and the ship financial lease contract dispute between Heng'an Shipping Co., Ltd. and Fuheng Shipping Co., Ltd. accepted by the Haikou Maritime Court, mainland courts all held that the jurisdiction stipulations in the respective disputed contracts did not violate the provisions of Chinese law, and thus recognized the validity of asymmetric jurisdiction.

In summary, mainland courts adopt a relatively loose standard for determining the validity of asymmetric jurisdiction agreements and respect party autonomy, and shall only determine an agreement to be invalid if it violates exclusive jurisdiction, contravenes public interests, is based on an inauthentic expression of intent or is not in a legal form. This stance is clearly reflected in the Summary of the Symposium on the Trial of Foreign-Related Commercial and Maritime Cases by Courts Nationwide, which stipulates that where one party may choose to institute proceedings in courts of multiple countries while the other party may only institute proceedings in the court of a specific country, the people's court shall not support the party's claim for the invalidity of the jurisdiction agreement on the ground of obvious unfairness.

（二）香港法院对非对称管辖协议的效力认定

2.2Determination of the Validity of Asymmetric Jurisdiction Agreements by Hong Kong Courts

香港属普通法系，规则源于判例法及相关成文法，同样遵循意思自治，但更注重“合理性”与“公平性”审查，核心三点：一是管辖合意真实，若一方能证明协议系欺诈、胁迫、误解所致，或对方隐瞒管辖非对等性，法院可认定无效；二是约定具有合理性，需与交易性质、利益格局匹配，不得滥用优势地位，如约定弱势方仅能向无关联法域法院起诉，可能被认定无效；三是不违反香港公共政策与专属管辖，公共政策侧重司法公正、程序正义，专属管辖包括香港不动产、婚姻家庭纠纷等。实践中，香港对“合理性”审查更严，注重保护弱势方权益。

Hong Kong belongs to the common law system, whose rules are derived from case law and relevant statutory laws. It also follows the principle of party autonomy, but attaches more importance to the examination of "reasonableness" and "fairness", with three core points: first, the authenticity of the consensus on jurisdiction. If one party can prove that the agreement was concluded due to fraud, duress or misunderstanding, or that the other party concealed the inequality of jurisdiction, the court may determine the agreement to be invalid; second, the reasonableness of the stipulation, which shall match the nature of the transaction and the interest structure, and the dominant party shall not abuse its dominant position. For example, a stipulation that the disadvantaged party may only institute proceedings in the court of a jurisdiction irrelevant to the transaction may be determined to be invalid; third, non-violation of Hong Kong's public policy and exclusive jurisdiction. Public policy focuses on judicial justice and procedural justice, and exclusive jurisdiction includes disputes over Hong Kong real estate and marriage and family disputes in Hong Kong. In practice, Hong Kong adopts a stricter standard for the examination of "reasonableness" and attaches great importance to protecting the rights and interests of the disadvantaged party.

（三）两地效力认定的差异与冲突

2.3Differences and Conflicts in the Validity Determination between the Two Jurisdictions

两地核心差异有三：一是对等性要求不同，内地不将对等性作为生效必要条件，香港侧重合理性审查；二是显失公平认定标准不同，内地标准严格，香港侧重约定合理性；三是公共利益界定不同，内地侧重国家主权，香港侧重司法公正与当事人权益。该差异可能引发管辖冲突，可能出现内地认定有效、香港认定无效的情况，导致平行诉讼，浪费司法资源。

There are three core differences between the two jurisdictions: first, different requirements for reciprocity. The Mainland does not take reciprocity as a necessary condition for the entry into force of an agreement, while Hong Kong focuses on the examination of reasonableness; second, different criteria for determining obvious unfairness. The Mainland adopts a strict standard, while Hong Kong focuses on the reasonableness of the stipulation; third, different definitions of public interests. The Mainland focuses on national sovereignty, while Hong Kong focuses on judicial justice and the rights and interests of the parties. Such differences may lead to jurisdiction conflicts, where an agreement may be determined to be valid in the Mainland but invalid in Hong Kong, resulting in parallel proceedings and a waste of judicial resources.

Recognition and Enforcement of Judgments between the Mainland and Hong Kong under Asymmetric Jurisdiction

在涉及债权人根据非对称性管辖条款在指定的香港法院起诉，香港法院作出判决后债权人向内地法院申请认可和执行该判决，抑或债权人向中国内地法院起诉，债权人向香港法院申请认可和执行内地法院判决的情形中，因非对称性管辖条款的特殊性，导致实践中仍存在诸多难点，非对称性管辖条款可能因不满足“排他性管辖协议”的条件而不被受理申请执行的香港或内地法院认可和执行。

In cases where a creditor institutes proceedings in a designated Hong Kong court in accordance with an asymmetric jurisdiction clause, and after a judgment is rendered by the Hong Kong court, the creditor applies to a mainland court for the recognition and enforcement of the judgment, or where a creditor institutes proceedings in a mainland court and then applies to a Hong Kong court for the recognition and enforcement of the mainland court's judgment, practical difficulties still exist due to the particularity of asymmetric jurisdiction clauses. An asymmetric jurisdiction clause may not be recognized and enforced by the Hong Kong or mainland court accepting the application for enforcement because it fails to meet the conditions of an "exclusive jurisdiction agreement".

（一）核心依据

3.1Core Legal Basis

关于内地与香港法院判决的相互认可和强制执行，内地与香港均有相关规定。两地的核心依据系2009年实施的《安排》，其中明确规定，内地人民法院和香港特别行政区法院在具有书面管辖协议的民商事案件中作出的须支付款项的具有执行力的终审判决，当事人可以根据该《安排》向内地人民法院或者香港特别行政区法院申请认可和执行。《安排》第三条明确规定，书面管辖协议是指“以书面形式明确约定内地人民法院或者香港特别行政区法院具有唯一管辖权的协议”，即排他性管辖协议。2019年1月18日，最高人民法院发布了《关于内地与香港特别行政区法院相互认可和执行民商事案件判决的安排》（以下简称“《新互认判决安排》”）。《新互认安排》对两地相互认可和执行民商事案件判决的范围和判项内容作了扩展，不再要求以存在“排他性管辖协议”为前提条件。

然而，根据香港高等法院《内地判决（交互强制执行）条例》（香港法例第597章，以下简称“《内地交互执行条例》”）的规定，根据香港法院作出的生效判决向内地法院申请执行，申请人须向香港法院申请出具经核证的香港判决文本及香港判决的证明书。《内地交互执行条例》第3（1）条规定，香港法院出具以上证明文件的条件之一，即该管辖协议必须包含一项“选用香港法院的协议”，而其他司法管辖区的法院无权处理该等争议。除此之外，《海牙选择法院协议公约》（以下简称“《海牙公约》”）第一条第一款也规定了“排他性选择法院协议”的要求。在《海牙公约》的说明报告中，报告人也明确指出，非对称管辖权条款不属于排他性选择法院协议。

Regarding the mutual recognition and enforcement of judgments between mainland and Hong Kong courts, both the Mainland and Hong Kong have formulated relevant provisions. The core legal basis for the two jurisdictions is the Arrangement implemented in 2009, which clearly stipulates that for enforceable final judgments involving the payment of money rendered by people's courts in the Mainland and courts of the HKSAR in civil and commercial cases with a written jurisdiction agreement, the parties may apply to a people's court in the Mainland or a court of the HKSAR for recognition and enforcement in accordance with the Arrangement. Article 3 of the Arrangement clearly stipulates that a written jurisdiction agreement refers to "an agreement in writing that explicitly designates a people's court in the Mainland or a court of the HKSAR as the sole competent court", i.e., an exclusive jurisdiction agreement. On January 18, 2019, the Supreme People's Court issued the Arrangement between the Mainland and the Hong Kong Special Administrative Region for the Mutual Recognition and Enforcement of Judgments in Civil and Commercial Cases (hereinafter referred to as the New Arrangement for Mutual Recognition of Judgments). The New Arrangement for Mutual Recognition of Judgments expands the scope of civil and commercial cases and the contents of judgment items for which the two jurisdictions mutually recognize and enforce judgments, and no longer takes the existence of an "exclusive jurisdiction agreement" as a prerequisite.

However, in accordance with the provisions of the Mainland Judgments (Reciprocal Enforcement) Ordinance (Cap. 597 of the Laws of Hong Kong, hereinafter referred to as the Reciprocal Enforcement Ordinance) of the Hong Kong High Court, for an application to a mainland court for the enforcement of an effective judgment rendered by a Hong Kong court, the applicant shall apply to the Hong Kong court for the issuance of a certified copy of the Hong Kong judgment and a certificate of the Hong Kong judgment. Article 3(1) of the Reciprocal Enforcement Ordinance stipulates that one of the conditions for the Hong Kong court to issue the above-mentioned certification documents is that the jurisdiction agreement must include an "agreement to submit to the jurisdiction of Hong Kong courts", to the exclusion of courts of other jurisdictions from dealing with such disputes. In addition, Article 1(1) of the Hague Convention on Choice of Court Agreements (hereinafter referred to as the Hague Convention) also stipulates the requirement for an "exclusive choice of court agreement". In the explanatory report of the Hague Convention, the reporter also clearly pointed out that an asymmetric jurisdiction clause does not fall within the scope of an exclusive choice of court agreement.

（二）基本原则与主要难点

3.2 Basic Principles and Main Difficulties

总体而言，两地相互承认执行判决需遵循四大原则：一是协议管辖原则，判决需基于有效书面管辖协议；二是终审判决原则，需为两地具有执行力的终审判决；三是公共利益原则，不得违反执行地公共利益；四是程序公正原则，败诉方需获得合法传唤与充分答辩权。

难点一是管辖协议效力认定冲突，导致判决无法执行，如内地认定有效作出的判决，香港可能以协议不合理为由拒绝承认，此外，可能还需要符合《内地交互执行条例》《海牙公约》中“排他性选择法院协议”的要求；二是“显失公平”成为主要抗辩理由，香港法院会重新审查协议合理性，导致内地判决在港执行难度更高；三是程序公正审查标准差异，香港对答辩权保障要求更严，弱势方若未充分行使答辩权，可能成为拒绝执行的理由；四是财产查找与执行协助不足，两地财产信息共享不完善，程序繁琐，被执行人易转移财产规避执行。

In general, the mutual recognition and enforcement of judgments by the two jurisdictions shall follow four basic principles: first, the principle of agreed jurisdiction, which requires that the judgment be rendered based on a valid written jurisdiction agreement; second, the principle of final judgment, which requires that the judgment be an enforceable final judgment of the two jurisdictions; third, the principle of public interests, which requires that the recognition and enforcement of the judgment shall not violate the public interests of the enforcing jurisdiction; fourth, the principle of procedural justice, which requires that the losing party has been legally summoned and granted the full right to defend.

The first difficulty is the conflict in the determination of the validity of jurisdiction agreements, which leads to the failure to enforce the judgment. For example, a judgment rendered by the Mainland on the finding of validity may be refused recognition by Hong Kong on the ground of the unreasonableness of the agreement. In addition, the judgment may also need to comply with the requirement for an "exclusive choice of court agreement" under the Reciprocal Enforcement Ordinance and the Hague Convention; the second difficulty is that "obvious unfairness" has become a major ground for defense. Hong Kong courts will re-examine the reasonableness of the agreement, resulting in greater difficulty in enforcing mainland judgments in Hong Kong; the third difficulty is the difference in the criteria for examining procedural justice. Hong Kong adopts a stricter requirement for the protection of the right to defend, and if the disadvantaged party fails to fully exercise its right to defend, it may become a ground for refusing enforcement; the fourth difficulty is the insufficiency in property search and enforcement assistance. The property information sharing mechanism between the two jurisdictions is not perfect, the procedures are cumbersome, and the judgment debtors are likely to transfer their property to evade enforcement.

（三）典型案例分析

3.3 Analysis of a Typical Case

2020年3月4日，香港高等法院在Industrial and Commercial Bank Of China (Asia) Limited v Wisdom Top International Limited(高慧国际有限公司) [2020] HKCFI 3221一案中，首次对“非对称性管辖条款是否属于《内地交互执行条例》下所规定的排除其他司法管辖区域‘选用香港法院的协议’，即管辖协议是否‘指明由香港法院裁定与合同有关的争议，而其他司法管辖区的法院无权处理该等争议’的问题”作出了认定。香港法院认为：如果债务人是提起诉讼的原告，债务人只能依照合同在香港发起诉讼，则本案的管辖权条款属于一项排除其他司法管辖区域“选用香港法院的协议”（即排他性管辖条款）；如果债权人是提起诉讼的原告，债权人既可在香港发起诉讼，也可在债务人的财产所在地新加坡发起诉讼，则本案的管辖权条款不属于一项排除其他司法管辖区域“选用香港法院的协议”（即非排他性管辖条款）。最终香港法院裁定，该案的非对称性管辖条款不符合《内地交互执行安排》关于香港法院排他性管辖的要求，从而债权人不得申请香港法院出具相应证明文件用以在内地法院申请对债务人提起香港法院判决的认可和强制执行。

On March 4, 2020, in the case of Industrial and Commercial Bank Of China (Asia) Limited v Wisdom Top International Limited [2020] HKCFI 322, the Hong Kong High Court made a determination for the first time on the issue of "whether an asymmetric jurisdiction clause constitutes an 'agreement to submit to the jurisdiction of Hong Kong courts' to the exclusion of other jurisdictions as stipulated under the Reciprocal Enforcement Ordinance, i.e., whether the jurisdiction agreement 'specifies that disputes relating to the contract shall be determined by Hong Kong courts, to the exclusion of courts of other jurisdictions from dealing with such disputes'". The Hong Kong court held that: if the debtor is the plaintiff instituting proceedings, the debtor may only institute proceedings in Hong Kong in accordance with the contract, then the jurisdiction clause in this case constitutes an "agreement to submit to the jurisdiction of Hong Kong courts" to the exclusion of other jurisdictions (i.e., an exclusive jurisdiction clause); if the creditor is the plaintiff instituting proceedings, the creditor may institute proceedings either in Hong Kong or in Singapore where the debtor's property is located, then the jurisdiction clause in this case does not constitute an "agreement to submit to the jurisdiction of Hong Kong courts" to the exclusion of other jurisdictions (i.e., a non-exclusive jurisdiction clause). Finally, the Hong Kong court ruled that the asymmetric jurisdiction clause in this case failed to meet the requirement for the exclusive jurisdiction of Hong Kong courts under the Arrangement for Mutual Recognition and Enforcement of Judgments between the Mainland and Hong Kong, and thus the creditor was not entitled to apply to the Hong Kong court for the issuance of the corresponding certification documents for applying to the mainland court for the recognition and enforcement of the Hong Kong court's judgment against the debtor.

Practical Suggestions and Improvement Paths from a Lawyer's Perspective

第一，谨慎签订协议，明确核心条款。优势方约定非对称管辖时，需确保管辖法院与交易相关，避免约定不合理；弱势方需谨慎审查，可约定“管辖协议效力适用内地法律”降低风险，同时采用书面形式，明确核心条款。若相关交易合同是优势方事先拟定供重复使用的格式合同时，优势方应当对非对称性管辖条款作出显著标记，并在合同签署时向弱势方作出说明或以其他合理方式提醒弱势方注意该等条款，否则将来该等管辖条款有被认定为对弱势方不具有约束力的风险。如在浙江省高级人民法院审理的（2016）浙民辖终294号绍兴皓宜贸易有限公司与法国达飞海运集团等海上货物运输合同纠纷管辖权异议上诉案中，印制在提单背面的不对称性管辖条款因承运人因未采取合理方式提请托运人注意而被法院认定为不能约束当事人。第二，提前预判效力，制定纠纷策略。签订协议后，预判两地效力认定差异，纠纷发生时，优势方选择有利法院并准备相关证据，弱势方可提出管辖异议或抗辩。第三，注重证据留存，保障程序权利。留存协议、交易凭证等证据，弱势方可委托涉外律师代理，保障答辩、举证权利，同时提前查找被执行人异地财产信息。

First, conclude agreements with caution and clarify the core clauses. When the dominant party stipulates asymmetric jurisdiction, it shall ensure that the competent court is relevant to the transaction and avoid unreasonable stipulations; the disadvantaged party shall examine the agreement with caution, may stipulate that "the validity of the jurisdiction agreement shall be governed by mainland law" to reduce risks, and adopt a written form to clarify the core clauses at the same time. If the relevant transaction contract is a standard contract pre-drafted by the dominant party for repeated use, the dominant party shall mark the asymmetric jurisdiction clause prominently, and explain the clause to the disadvantaged party or remind the disadvantaged party to pay attention to such a clause in other reasonable ways when signing the contract, otherwise such a jurisdiction clause may be determined to be unenforceable against the disadvantaged party in the future. For example, in the case of an appeal against jurisdiction objection in a maritime cargo transportation contract dispute between Shaoxing Haoyi Trading Co., Ltd. and CMA CGM S.A. et al. (2016) Zhe Min Xia Zhong No.294 heard by the Zhejiang Higher People's Court, the asymmetric jurisdiction clause printed on the back of the bill of lading was determined by the court to be unenforceable against the parties because the carrier failed to take reasonable ways to draw the shipper's attention to it. Second, predict the validity in advance and formulate dispute resolution strategies. After signing the agreement, the parties shall predict the differences in the validity determination between the two jurisdictions. In the event of a dispute, the dominant party shall choose a favorable court and prepare relevant evidence, and the disadvantaged party may raise an objection to jurisdiction or put forward a defense. Third, attach importance to evidence preservation and safeguard procedural rights. The parties shall preserve evidence such as agreements and transaction documents, the disadvantaged party may entrust a foreign-related lawyer to act as an agent to safeguard the rights to defend and adduce evidence, and search for information on the judgment debtor's property in other jurisdictions in advance at the same time.

Conclusion

多法域视野下，内地与香港非对称管辖的效力认定及判决承认执行，核心难点在于两地法律体系与司法实践的差异。非对称管辖协议效力认定遵循意思自治原则，但两地审查标准不同，判决执行面临多重障碍。破解该难题，需跨境商事主体增强风险防范意识，也需两地加强司法合作、完善制度、培养人才。涉外律师应发挥专业优势，助力商事主体防范风险、高效解决纠纷，推动两地跨境民商事合作健康发展。

From a multijurisdictional perspective, the core difficulty in the determination of the validity of asymmetric jurisdiction and the recognition and enforcement of judgments between the Chinese Mainland and Hong Kong lies in the differences between the legal systems and judicial practices of the two jurisdictions. The determination of the validity of an asymmetric jurisdiction agreement follows the principle of party autonomy, but the two jurisdictions adopt different examination standards, and the enforcement of judgments faces multiple obstacles. To solve this problem, cross-border commercial entities need to enhance their awareness of risk prevention, and the two jurisdictions also need to strengthen judicial cooperation, improve the relevant systems and cultivate professional talents. Foreign-related lawyers should give play to their professional advantages to help commercial entities prevent risks and resolve disputes efficiently, and promote the healthy development of cross-border civil and commercial cooperation between the two jurisdictions.

注释：

1.《香港法院不予核证判决以供内地法院执行：不对称管辖条款并非专属管辖协议》https://www.hsfkramer.com/notes/asiadisputes/2020-04/hong-kong-court-holds-asymmetric-jurisdiction-clause-not-an-exclusive-choice-of-court-agreement-for-the-purpose-of-enforcement-in-the-mainland/