China refused to recognize and enforce two Uzbekistan judgments in 2011 and 2014 respectively, all because of the service of process inconsistent with the bilateral judicial assistance treaty.
In both cases, Chinese courts rendered rulings against recognition and enforcement, because the courts of Uzbekistan served documents on the parties in China in a way inconsistent with the Treaty between the People’s Republic of China and the Republic of Uzbekistan on Judicial Assistance in Civil and Criminal Matters (中华人民共和国和乌兹别克斯坦共和国关于民事和刑事司法协助的条约) (hereinafter “the Bilateral Treaty”).
The two cases are summarized as follows:
I. Case in 2011
This case was about Choryanaslxizmat Co., Ltd. of the Republic of Uzbekistan applying for recognition and enforcement of a civil judgment (No. N015 - 08 - 06/9474) rendered by the Economic Court of Fergana State of the Republic of Uzbekistan (hereinafter “the Fergana Court”). [1]
After the case was accepted by a local court in Xinjiang, China, the High People’s Court of Xinjiang Uygur Autonomous Region requested the Supreme People’s Court (SPC) for advice on the case. The SPC replied that the Chinese court should rule against the recognition and enforcement of the judgment.
When the Fergana Court served the summons on the Chinese side, i.e. Horgos Haihong Trading Co., Ltd. (hereinafter “the Horgos Company”), it adopted two ways: one was to serve the summons and the judgment on the Horgos Company by the Xinjiang Foreign Trade Department (新疆外经贸厅) through the Economic and Commercial Counsellor’s Office of the Chinese Embassy in Uzbekistan; the other was to serve the summons and the judgment by fax.
In its reply, the SPC held that, according to the Bilateral Treaty, when the Fergana Court served documents on the Chinese side, it shall be done by the central authority of China, after the central authority of Uzbekistan sent a request letter to it.
Therefore, the Fergana Court’s service of process was not in line with the Bilateral Treaty.
According to the Bilateral Treaty, the recognition and enforcement of an award may be refused if it is detrimental to the sovereignty, security, and public order of the requested party. The SPC held that the Fergana Court’s service of process harmed China’s judicial sovereignty, so recognition and enforcement of the said judgment shall be refused.
II. Case in 2014
This case was about the applicant Uzprommashimpeks State Joint Stock Company applying for recognition and enforcement of the judgment rendered by the Tashkent Economic Court of the Republic of Uzbekistan (hereinafter “the Tashkent Court”). [2]
After the case was accepted by a local court in Zhejiang, China, the Zhejiang High People’s Court requested the SPC for advice on the case. The SPC replied that the Chinese court should rule against the recognition and enforcement of the judgment.
The Tashkent Court served the summons on the Chinese side, i.e. Wenzhou Golden Lion Entertainment Equipment Manufacturing Co., Ltd. (温州市金狮游艺器材制造有限公司) (hereinafter “the Wenzhou Company”) by post.
In its reply, the SPC held that the Tashkent Court’s service of process was inconsistent with the Bilateral Treaty. Moreover, Chinese laws expressly oppose the service by post and the like to the parties located in China.
The SPC held that the Tashkent Court’s service of process infringed China’s judicial sovereignty, so recognition and enforcement of the said judgment shall be refused.
III. Our comments
Both of the above cases show that if the service of process by foreign courts is not consistent with the bilateral treaties or Chinese domestic laws, it will result in the judgment in question not being recognized and enforced by Chinese courts.
It should be noted that China has signed treaties on judicial assistance in civil and commercial matters with 39 countries, and the courts of these countries should abide by these bilateral treaties when serving documents on the Chinese side. In addition, China has also acceded to the Hague Service Convention with some reservations(service by post, for example, is not allowed). Therefore, the parties to the Convention need to abide by the Convention and China’s reservations when they serve documents on the Chinese side.
[1] 最高人民法院关于对乌兹别克斯坦共和国CHORVANASLXIZMAT有限责任公司申请承认和执行乌兹别克斯坦共和国费尔干纳州经济法院作出的N015-08-06/9474号民事判决一案的请示的复函 （[2011]民四他字第18号2011年8月16日）
[2] 最高人民法院关于Uzprommashimpeks国家股份公司请求承认与执行乌兹别克斯坦共和国塔什干市经济法庭判决一案请示的复函 （2014年3月6日 [2014]民四他字第9号）
Photo by Ferdinand (https://unsplash.com/@ferdinand_feng) on Unsplash
Contributors: Guodong Du 杜国栋 , Meng Yu 余萌
