Judge Shen Hongyu (沈红雨) of China’s Supreme People’s Court (SPC), who participated in the policy making concerning the recognition and enforcement of foreign civil and commercial judgments in China, focused on three issues: whether foreign courts have jurisdiction; whether foreign courts ensure that the parties are properly notified and enjoy the right to be heard; the reciprocal relationship between China and the country where the judgment is rendered.
This post is an introduction to the article titled “Research on Some Difficult Problems in Recognition and Enforcement of Foreign Civil and Commercial Judgments” (外国民商事判决承认和执行若干疑难问题研究) to reflect an SPC judge’s thoughts on the recognition and enforcement of foreign civil and commercial judgments. This article was published in “Journal of Law Application” (法律适用) (No. 5, 2018), the author of which is Shen Hongyu, Judge of the SPC’s 4th Civil Division. According to related reports, Judge Shen Hongyu was involved in the drafting of the SPC's “Judicial Interpretation on the Recognition and Enforcement of Foreign Civil and Commercial Judgments” (最高人民法院关于承认与执行外国法院民商事判决的司法解释).
4. How should Chinese courts treat a reciprocal relationship?
The CPL stipulates that the principle of reciprocity is a prerequisite for the recognition and enforcement of foreign judgments, but the law does not provide a clear explanation for the principle of reciprocity. Therefore, there are discrepancies among Chinese courts on how to determine the existence of reciprocity.
For a long time, China has insisted on de facto reciprocity, that is, if there is no precedent showing that either country has recognized and enforced the judgment of the other country, then there is no corresponding reciprocal relationship between the two countries.
The author considers that de facto reciprocity not only makes it difficult for foreign civil and commercial judgments to be recognized and enforced by Chinese courts, but also potentially causes foreign courts to refuse to recognize Chinese judgments on the basis of the principle of reciprocity, and has also led to a large number of parallel proceedings.
The author believes that in order to serve the construction of China’s “Belt and Road initiative”, Chinese courts should rationally loosen the criteria for reciprocal relationships, thus promoting cooperation in cross-border recognition and enforcement of judgments between countries.
The author also indicates that the “Several Opinions of the Supreme People's Court on Providing Judicial Services and Safeguards for the Construction of the ‘Belt and Road’ by People's Courts” (关于人民法院为“一带一路”建设提供司法服务和保障的若干意见) issued by the SPC in 2015 and the “Nanning Statement” (南宁声明) approved by the 2nd China-ASEAN Justice Forum in 2017 are breakthroughs made by Chinese courts regarding the principle of reciprocity. (CJO has also noticed this trend.)
The author puts forward her suggestions on the approach China can take in the future regarding the issue of reciprocity:
(1) Clarifying the criteria of reciprocity in legislation or judicial interpretation
The author argues that in terms of determining the existence of reciprocity, China should judge the possibility of recognition and enforcement of Chinese judgments in the foreign country according to the law of the country where the judgment is rendered (de jure reciprocity), rather than compulsorily requires a de facto reciprocity between the two countries.
(2) Diversifying forms and channels for building a reciprocal relationship
In addition to signing a judicial assistance treaty, China can further broaden its channels for establishing a reciprocal relationship, including:
i. Making reciprocal commitments through diplomatic channels by the two countries;
ii. Reaching a judicial memorandum of understanding or consensus on mutual recognition and enforcement of judgments.
For example, China has for the first time tried to establish a presumptive reciprocity with ASEAN countries under certain conditions through a judicial consensus in the “Nanning Statement” (南宁声明).
(3) Determining the application of the principle of reciprocity and its exceptions according to the categories of different judgments
At present, Chinese parties may apply to a Chinese court for recognition of a foreign divorce judgment, without the requirement of the existence of a reciprocal relationship between the foreign country and China.
The author believes that, in addition to divorce judgments, China may consider, by legislation or judicial interpretations, explicitly refraining from applying the principle of reciprocity in judgments concerning the civil right and the civil capacity of a citizen and a legal entity, as well as an adoptive or guardian relationship.
(4) Clarifying the burden of proof for the principle of reciprocity
The author argues that in principle, Chinese courts should determine ex officio whether there is a reciprocal relationship between China and the country where the judgment is rendered, but Chinese courts may also require the parties concerned to provide foreign laws.
Since the case law in foreign countries is constantly evolving, whether there exists a precedent showing that the country where the judgment is rendered has recognized or not recognized the judgment of a domestic court applies appropriately only as one of the considerations, rather than a decisive factor, in determining a reciprocal relationship.
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For more information on Recognition and Enforcement of Foreign Judgments in China, please feel free to download our CJO newsletter vol.1 no. 1.