Abstract
In order to build effectively the Belt and Road Initiative (BRI), improvements in the international credibility of the Chinese judiciary is required. To this end, the Supreme People’s Court (SPC) released the Opinions on People’s Court’s Provision of Judicial Service and Safeguards for the BRI in July 2015, which sets guidelines and rules for Chinese courts to improve foreign judicial rules under the background of the BRI. However, the authors of this article maintain that the Opinions must be improved to meet the needs of the BRI and recommend that the Chinese courts look to the judicial ideologies of a major country in order to weaken the notion of judicial sovereignty and to promote a judicial ideology featuring equal protection, win-win cooperation, opening up, and efficiency. They also recommend improving the judicial system through various measures, including fully guaranteeing foreigners’ litigation rights, properly narrowing the ambit of exclusive jurisdiction, and properly settling parallel proceedings. In addition, they recommend innovating judicial methods, including actively applying forum non conveniens, actively confirming the existence of reciprocity, accurately applying international treaties and customs, and fully utilizing guiding cases, as well as promoting an inclusive judicial culture and a diversified resolution mechanism and ascertaining and correctly applying foreign law.
The chapter was published in The Chinese Journal of Comparative Law (2017, Vol. 5, Issue 1) by Oxford University Press.
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- 1.
Opinions on People’s Court’s Provision of Judicial Service and Safeguards for ‘One Belt, One Road’ (Zuigao Renmin Fayuan Guanyu Renmin Fayuan Wei Yidaiyilu Jianshe Tigong Sifa Fuwu He Baozhang De Ruogan Yijian) (2015) (PRC).
- 2.
See De Boer (1996), p. 391.
- 3.
Civil Procedure Law of the People’s Republic of China (Zhonghua Renmin Gongheguo Minshi Susongfa) (1991, revised in 2012) art 5 (PRC).
- 4.
The 18 countries are: France, Italy, Spain, Bulgaria, Hungary, Morocco, Singapore, Tunisia, South Korea, Poland, Romania, Russia, Turkey, Cuba, Greece, Kyrgyzstan, Tadzhikistan, and Uzbekistan.
- 5.
The 14 countries are: Italy, Bulgaria, Thailand, Morocco, Tunisia, South Korea, Turkey, Egypt, Greece, Cyprus, Vietnam, Laos, Lithuania, and North Korea.
- 6.
The 24 countries are: Italy, Bulgaria, Thailand, Poland, Hungary, Morocco, the United Arab Emirates, Mongolia, Romania, Russia, Turkey, Ukraine, Belarus, Kazakhstan, Egypt, Greece, Cyprus, Kyrgyzstan, Tajikistan, Uzbekistan, Vietnam, Laos, Lithuania, and North Korea.
- 7.
Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China (Zuigao Renmin Fayuan Guanyu Shiyong Zhonghua Renmin Gongheguo Minshi Susongfa De Jieshi) (2015) art 528 (PRC) (Interpretation).
- 8.
Civil Procedure Law of the People’s Republic of China (Zhonghua Renmin Gongheguo Minshi Susongfa) (1991, revised in 2012) art 263 (PRC) (Civil Procedure Law).
- 9.
Vienna Convention on Diplomatic Relations 1961, 500 UNTS 95; Vienna Convention on Consular Relations, 1963, 596 UNTS 261.
- 10.
Civil Procedure Law (n 8) art 33 (PRC): ‘[T]he following cases shall be under the exclusive jurisdiction of the people’s courts here in specified: (1) a lawsuit brought on a dispute over real estate shall be under the jurisdiction of the people’s court of the place where the estate is located; (2) a lawsuit brought on a dispute over harbour operations shall be under the jurisdiction of the people’s court of the place where the harbour is located; and (3) a lawsuit brought on a dispute over succession shall be under the jurisdiction of the people’s court of the place where the decedent had his domicile upon his death, or where the principal part of his estate is located.’
- 11.
Civil Procedure Law (n 8) art 266.
- 12.
He (2015), p. 129.
- 13.
He (2007), p. 221.
- 14.
Interpretation (n 7) art 533: ‘[W]here both a court of the People’s Republic of China and a court of a foreign country have jurisdiction over a case, if one party files a lawsuit to a foreign court, and the other party files a lawsuit to a court of the People’s Republic of China, the people’s court may accept the lawsuit. After a judgment is rendered on the case, if the foreign court applies to, or the party concerned requests, the people’s court to recognise and enforce the judgment/ruling rendered by the foreign court on the case, the people’s court shall not allow the application or request, unless otherwise prescribed in the international treaties jointly concluded or acceded to by both the People’s Republic of China and the foreign country. Where the judgment/ruling rendered by the foreign court has been recognised by the people’s court, the people’s court shall not accept the lawsuit, if any, filed thereto by a party concerned against the same disputes.’
- 15.
Interpretation (n 7) art 15 (PRC): ‘[W]here a married couple of Chinese citizens has one party living within the Mainland and the other party living abroad, the people’s court at the domicile of the party living within the Mainland shall have jurisdiction regardless of which party files divorce to a people’s court. Where the party living abroad files divorce to a court in the country of his/her residence, and the party living within the Mainland files divorce to a people’s court, the people’s court that accepts the divorce case shall have jurisdiction.’
- 16.
By now, there have been quite a few cases where Chinese courts applied the forum non conve-niens. These cases include Dahao Chemical Industries, Ltd v Yuyan Paint Co, Ltd et al, Jiangsu High People’s Court Su Shang Hai Zhong Zi no 53 (2010); Green Tech Electronics Ltd v Smartech Electronics Co, Shanghai High People’s Court, Hu Gao Min Si (Shang) Zhong Zi no 59 (2009).
- 17.
In 2004, the Supreme People’s Court published the Answers to Questions Arising out of Trail Practice of Foreign-Related Commercial or Maritime Cases (2004 Answers). Under the 2004 Answers, it clarifies that forum non conveniens can be used under certain circumstances. In 2005, a more detailed guidance was provided in the Supreme People’s Court’s Minutes of the Second National Working Conference on the Trial of Foreign-Related Commercial and Maritime Cases.
- 18.
Interpretation (n 7) art 532 (PRC): ‘[W]here a foreign-related civil case falls under all of the following circumstances at the same time, a people’s court may render a ruling to dismiss the filing of action by the plaintiff, and inform the plaintiff to file a lawsuit to a more convenient foreign court: (1) Where the defendant to the said case raises the request that the case should be governed by a more convenient foreign court, or raises objections on jurisdiction; (2) Where there is no agreement between the parties concerned to select a court of the People’s Republic of China as the competent court; (3) Where the said case does not fall under the exclusive jurisdiction of the courts of the People’s Republic of China; (4) Where the said case does not involve the national interests of the People’s Republic of China and the interests of the citizens, legal persons or other organiations of the People’s Republic of China; (5) Where the main facts disputed in the said case did not take place within the territory of the People’s Republic of China, and the case is not governed by the laws of the People’s Republic of China, posing significant difficulties to the people’s court in ascertaining facts and applying laws during the hearing of the case; and (6) Where a foreign court has jurisdiction over the said case, and it is more convenient for the foreign court to hear the case.’
- 19.
As can be seen in cases including the Application of Gomi Akira (A Japanese Citizen) to Chinese Court for Recognition and Enforcement of Japanese Judicial Decision, Dalian City Intermediate People’s Court of Liaoning Province (1994), reprinted in (1996) 1 Supreme People’s Court Gazette 29; the Application of Russia National Symphony Orchestra and Art Mont Company for Recognition of a Judgment of the High Court of Justice in England, Intermediate People’s Court of Beijing Municipality no 2 (2005); Letter of Reply of the Supreme People’s Court on Request for Instructions Re Application of DNT France Power Engine Co, Ltd for Recognition and Enforcement of Australian Court Judgment, Supreme People’s Court (2007).
- 20.
Vgl Urteil des Kammergerichts Berlin vom 18.05.2006, Aktenzeichen 20 Sch 13/04. For details see Ma (2007), pp. 150–155.
- 21.
See Li (1998), pp. 313–320.
- 22.
See Han and Xiao (2004), p. 223.
- 23.
It is noteworthy that when an international custom is applied through party autonomy, its effect is lower than the domestic mandatory rules, but higher than domestic facultative rules. See Han and Xiao (2004), p. 258.
- 24.
Opinions of the Supreme People’s Court on Comprehensively Carrying Forward the Strategy of Producing Fine Works on the Trial of Cases involving Foreign-related Commercial and Maritime Affairs to Provide Effective Judicial Safeguard for Establishing the Open Economic System and Building up a Maritime Power (Zuigao Renmin Fayuan Guanyu Quanmian Tuijin Shewai Shangshi Haishi Shenpan Jingpin Zhanlve Wei Goujian Kaifangxing Jingji Tizhi He Jianshe Haiyang Qiangguo Tiguo Youli Sifa Baozhang De Yijian) (2015) (PRC) (Opinions of the Supreme People’s Court).
- 25.
See Opinions on People’s Court’s Provision of Judicial Service and Safeguards for ‘One Belt, One Road’ (Zuigao Renmin Fayuan Guanyu Renmin Fayuan Wei Yidaiyilu Jianshe Tigong Sifa Fuwu He Baozhang De Ruogan Yijian) (2015) para 11 (PRC) (Opinions on People’s Court Provision).
- 26.
Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 1958, 330 UNTS 38.
- 27.
See Opinions on People’s Court’s Provision (n 25) para 8.
- 28.
See Opinions of the Supreme People’s Court (n 24) para 25.
- 29.
Act on the Application of Laws on Foreign-related Civil Relationships of the People’s Republic of China (Zhonghua Renmin Gongheguo Shewai Minshi Falv Guanxi Shiyongfa) (2010) art 10(1) (PRC) (Civil Relationships Act): ‘[F]oreign laws applicable to foreign-related civil relations shall be ascertained by people’s courts, arbitration commissions or administrative organs. Parties concerned shall provide laws of the relevant foreign country if they choose to be governed by foreign laws.’
- 30.
Han (2014), pp. 153–154.
- 31.
Interpretation on the Implementation of Act on the Application of Laws on Foreign-related Civil Relationships of the People’s Republic of China (Zuigao Renmin Fayuan Guanyu Shiyong Zhonghua Renmin Gongheguo Shewai Minshi Falv Guanxi Shiyongfa Ruogan Wenti de Jieshi Yi), Supreme People’s Court (2012) arts 17 and 18 (PRC).
- 32.
Civil Relationships Act (n 29): ‘In the event that foreign laws are unable to be ascertained or contain no relevant provisions, laws of the People’s Republic of China shall apply.’
- 33.
Interpretation (n 7) art 17: ‘Where a people’s court fails to obtain foreign laws through channels provided by the parties concerned and specified by the international treaty that has already been applicable to the People’s Republic of China or reasonable channels provided by domestic and foreign legal experts, etc., such laws may be recognised as foreign laws that cannot be ascertained. Where, in accordance with the provision of the Paragraph 1 of Article 10 of the Law on the Application of Laws to Foreign-Related Civil Relations, the parties concerned should provide the foreign laws but fail to provide such foreign laws without legitimate grounds within the reasonable time limit specified by the people’s court, such laws may be recognised as foreign laws that cannot be ascertained.’
- 34.
See Xiao (2007), p. 228.
- 35.
See He (2016), p. 12.
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Xiao, Y., Yu, M. (2018). Some Suggestions for Improving the International Credibility of the Chinese Judiciary: A Focus on the BRI. In: Shan, W., Nuotio, K., Zhang, K. (eds) Normative Readings of the Belt and Road Initiative. Springer, Cham. https://doi.org/10.1007/978-3-319-78018-4_10
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