China’s Supreme People’s Court is trying to help Chinese judges better ascertain foreign law, and has established a one-stop platform for this purpose. This platform is also a part of the International Commercial Dispute Resolution Mechanism and Institutions for the Belt and Road Initiative of the central government.
In my previous posts, I have introduced the difficulties faced by Chinese courts in ascertaining foreign law, and have specifically mentioned that many judges had to apply Chinese law in case of failure to ascertain or prove foreign law. The Supreme People’s Court (SPC) hopes to change this situation so that foreign laws can be applied more effectively in Chinese courts.
The platform provides two ways to ascertain foreign law, including:
1. Ascertainment by International Commercial Expert Committee
These experts come from the International Commercial Expert Committee of the SPC. You can apply to CICC for engaging these experts.
However, the rates charged by these experts are not disclosed on the platform. These experts are well-known judges, arbitrators, lawyers, and scholars from China and other countries, so we guess that their rates are probably not low. The parties in most cases may not be able to afford to engage them. At present, there are only thirty-some experts on the platform, which is unlikely to meet the needs of all courts in China for foreign law ascertainment.
2. Ascertainment by Professional Organizations
The SPC has established cooperation with five foreign law ascertainment institutions in China, and you can directly apply to these institutions for foreign law ascertainment. Compared with the above expert committee, the rates charged by these five institutions are more flexible, and their expert reserves for ascertainment are more sufficient, thus making them more appealing for the parties.
In addition, the SPC has also published guiding cases involving the ascertainment of foreign laws, but these cases only have Chinese version at present. Chinese judges can learn about foreign laws from these cases, especially get to know how their peers apply foreign laws. Lawyers and parties may also use such cases as references.
I’m writing a paper to study Chinese practice in the field of the ascertainment of foreign law since 2011. I will share my opinions later in the paper.
Photo by Dino Reichmuth(https://unsplash.com/@dinoreichmuth) on Unsplash
Contributors: Meng Yu 余萌