Jurisdiction Basis in Cross-border Tourist-Consumer Protection Matters in Borderless Global Tourism Market in the E-commerce Era: A comparative Analysis of China, the EU and the USA

Zhen Chen
University of Groningen
China

Saturday, 14 September – 9:00 am
Room V U107, Faculty of Law – Professor-Huber-Platz 2, 80539 Munich

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Protecting foreign tourists is a brand-new issue in private international law in China, which is extremely significant under the One Belt One Road Initiative (OBOR or B&R initiative or BRI). OBOR initiative will inevitably promote the development of Silk Road tourism, and accordingly, an increasing amount of foreign-related tourism disputes will arise. Meanwhile, Silk Road tourism is faced with the fast-changing technology and increasingly-popularized internet usage, E-tourism is imposing new challenges on the traditional legal rules and regulations. Additionally, cross-border tourist-consumers nowadays are travelling in a borderless global tourism market in terms of the diversity and sophiscation of tour activity participants, ranging from international travel agents, airlines, hotels to cruise lines. Compared with tour operators, tourist consumers are weaker parties with regard to bargaining power, information and financial status. Therefore, cross-border consumers are more willing to file a suit against international tour operators in their home country or the country where they habitually resided, no matter what is the forum selection clause in the flight ticket, cruise ship ticket or travel websites. To exercise jurisdiction, the forum must justify its jurisdiction before setting the cross-border disputes between the tourist consumer and the travel business. 
For instance, if a Chinese tourist booked a Greek hotel online in a Chinese website and has disputes with the hotel, does the Chinese tourist have the right to sue a Greek hotel in a Chinese court? If so, what is the legal basis? If a Dutch couple travel to China, get injured on a cruise tour owned and operated by an American company and bring a lawsuit in a Chinese court, what is the jurisdiction rule. With the aim of improving the level of cross-border touristconsumer protection, this article will first start with case analysis in the Chinese judiciary to identify the existing problems and the gap between the China’s statutory law and the application in Chinese courts. Therefore, this article will start with the question of what are the rules of jurisdiction in China, in respect of foreign-related tourism disputes.
After identifying the problems existed in theory and in practice, this article will further find out the reasons and try to provide possible solutions by conducting comparative legal study of the EU and the USA. Given that tourism industry and tourist-consumer protection legislation have been well-developed in both EU and America, their standpoint and attitude on the same issue, however, are often quite different and even be opposite sometimes. One perfect example might be the enforceability of forum selection clause in standard contract, while America tends to support it from the perspective of businesses, the EU is more likely object it from the perspective of consumers. By conducting comparative study, this article aims not only to provide inspiration and solutions for the current struggle of Chinese courts but also make China more prepared for the future potential cross-border tourism disputes.