“Opinions on Further Providing Judicial Services and Safeguards for the Construction of the ‘Belt and Road’ by People's Courts” (关于人民法院进一步为“一带一路”建设提供司法服务和保障的意见) (“the 2019 Opinions”) was issued by China’s Supreme People’s Court (SPC) on 9 Dec. 2019.
It is the second time for the SPC to issue judicial policy documents related to the Belt and Road Initiative (BRI), following its “Several Opinions 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) (“the 2015 Opinions”) in 2015.
The SPC is making great efforts to internationalize Chinese courts, and in many ways, both the 2019 and 2015 Opinions exactly reflect these efforts.
This post here presents some noteworthy initiatives of the 2019 Opinions.
I. Application of law
The SPC hopes that Chinese courts will be more adept at applying foreign law and international law, and that Chinese laws will be more likely applied by foreign courts. This purpose is implied in nearly 20% of the text in 2019 Opinions.
For example, the SPC requires that Chinese courts, when determining the governing law according to the most significant relationship rule, shall consider the parties’ claims, conflict rules, and connecting factors, and explain how the governing law is determined. Prior to the 2019 Opinions, many Chinese judges would rashly apply Chinese law as the governing law, and the SPC wishes to change such phenomenon.
The SPC also hopes to help Chinese courts better understand foreign laws. For example, the SPC will: (1) consolidate China’s domestic resources to study the laws of the participating countries in the BRI; (2) build up a legal database and a database of cases; (3) establish an integrated platform for discerning foreign laws; (4) promote the application of international treaties and international practices by Chinese courts; (5) explore the application of foreign laws at the economic and trade cooperation zones in China; and (6) publicize the cases in which Chinese courts apply foreign laws.
The SPC also expects to increase the international visibility of Chinese laws. For example, the SPC will: (1) promote the formulation and improvement of regional and international commercial legal rules; (2) explore the application of Chinese laws at the economic and trade cooperation zones in foreign countries; and (3) publish typical cases tried by Chinese courts in multiple languages.
II. International Commercial Court
The SPC expects to improve the operating mechanism of China International Commercial Court (“CICC”) so as to improve its international appeal.
In addition, CICC will guide the courts in Shanghai Pilot Free Trade Zone, and Hainan Pilot Free Trade Zone, etc. to establish specialized institutions for hearing international commercial disputes, so as to provide better international commercial dispute resolution services.
CICC will also share information and cooperate with international commercial courts of other countries. On the one hand, it can increase the mutual trust between CICC and its counterparts. On the other hand, it can also enhance CICC's ability in international commercial rules making.
At present, CICC has coordinated with arbitration and mediation institutions in China to provide the one-stop dispute resolution service. The SPC hopes CICC will carry out similar cooperation with foreign institutions in the future.
The SPC expects to expand the CICC International Commercial Expert Committee, and to include industry representatives for the BRI construction and experts from the developing countries as the Committee members. The SPC also wants such members to participate in the trial of local court cases.
III. Other aspects
With regard to the recognition and enforcement of foreign judgments, the SPC already proposed in the 2015 Opinions to loosen its criteria, and this time, it continues to require Chinese courts to facilitate the judgment recognition and enforcement. In addition, in the 2019 Opinions, the SPC also requires Chinese courts to apply the principle of presumptive reciprocity (推定互惠) when hearing cases concerning the recognition and enforcement of judgments from international commercial courts, so as to promote the mutual recognition in this very field on a step-by-step basis.
The SPC supports China's relevant departments to establish international investment dispute settlement mechanisms and institutions. Previously, the State Council of China issued the “Opinions on the Establishment of ‘the Belt and Road Initiative’ International Commercial Dispute Settlement Mechanism and Institutions” (关于建立“一带一路”国际商事争端解决机制和机构的意见) in Jun. 2018, where the establishment of similar mechanisms and institutions has been mentioned.
The SPC supports the establishment of a joint arbitration mechanism between Chinese arbitration institutions and the arbitration institutions of other participating countries in the BRI, and supports foreign arbitration institutions to provide arbitration services via their branch offices set up in the Lingang New Area (临港新片区) of Shanghai Pilot Free Trade Zone.
IV. Our comments
Based on our previous observations, the SPC will continue to study how to take more specific measures for each specific provision of the 2019 Opinions. Once the SPC has determined specific measures, it will issue relevant detailed rules for each measure. And we will continue to observe the follow-ups in the future.
Photo by Louis Manique (https://unsplash.com/@louis_mna)t on Unsplash