Zhao Qianxi (赵千喜), one of the authors of this article, is the presiding judge who created a precedent to recognize and enforce a US judgment in China in 2017. The process of reflection in hearing the case introduced by him can help us to better understand the court’s reasoning. We can conclude that this case may be more of an omen rather than a coincidence.
This post is an introduction to the article titled “Judicial Review of the Application of Recognition and Enforcement of Foreign Judgments—A Comparative Analysis of Legislation and Judicial Cases in China and the US” (论承认和执行外国法院判决申请之司法审查——以中美两国的立法和司法案例为分析对象). Written by Li Shuangli (李双利) and Zhao Qianxi - judges of Wuhan Intermediate People’s Court, this article was published in “Journal of Law Application” (法律适用) (No. 5, 2018). Zhao Qianxi, one of the authors, is the presiding judge of the “Case of Petitioner-Liu Li and Respondent-Tao Li and Tong Wu’s application for recognition and enforcement of a foreign civil judgment” (申请人刘利与被申请人陶莉、童武申请承认和执行外国法院判决一案) (hereinafter referred to as the “Wuhan case”), which marks the first time that China recognizes and enforces a US judgment. “Journal of Law Application” is a periodical of the China National Judges College, which is affiliated with China’s Supreme People's Court (SPC), and is the major education and training institution for Chinese judges.
The author mentions that the “Wuhan case” in which he sits is the first case in China to recognize and enforce a US civil judgment based on the principle of reciprocity. Decided by the Los Angeles Superior Court, California, this American civil judgment is about a share transfer agreement dispute between the applicant and the respondent. The author also mentions that shortly before the “Wuhan Case” ruling was handed down, the Nanchang Intermediate People's Court of Jiangxi Province rejected the application of the applicants Herbert Truhe et al. for recognition and enforcement of a personal damages compensation judgement rendered by the Superior Court of Pennsylvania (hereinafter referred to as the “Nanchang case”), on the ground that there existed neither international treaties on mutual recognition and enforcement of court judgments nor reciprocity between China and the US.
The author expresses regret about the opposite results of the two cases and implicitly conveys his disagreement concerning the Nanchang court's refusal to recognize and enforce the American judgment in the “Nanchang case”. It can thus be seen that different courts in China may have different views on whether to recognize a US judgment. However, since Zhao Qianxi's article is published in the periodical of the National Judges College, it is reasonable to assume that his views have been supported by the SPC.
The author also refers to certain views in China that where a state court or even a federal court in the US recognizes a Chinese judgment, it does not necessarily mean that there exists a reciprocal relationship between China and the US. The “Nanchang case” supports this view and concludes that there is no reciprocal relationship between China and the US. However, the author expressly indicates that he did not take this view into the “Wuhan case”.
The author holds the following views:
1. When examining whether there exists the de facto reciprocity between two countries, a Chinese court mainly reviews whether there is a precedent that the other country recognized and enforced Chinese judgments, rather than examining the specific laws invoked by the other country when it decided to recognize and enforce Chinese court judgments. Regardless of whether the foreign court referred to the principle of reciprocity in its judgment, as long as the foreign court has previously recognized and enforced Chinese court judgments, this country can be regarded as having a de facto reciprocal relationship with China.
2. A Chinese court does not need to rigorously examine the similarities and differences between the foreign judgment, whose recognition was applied by the applicant, and the Chinese judgment already recognized by the foreign country. In other words, even if there are differences between the foreign judgment and the Chinese judgment, in matters such as nationalities of parties, causes of action, amounts in controversy etc., these differences should not prevent the Chinese court from recognizing the existence of a de facto reciprocal relationship.
3. Although the de facto reciprocity is reflected in foreign court judgments of specific cases, due to differences in the judicial systems of different countries, Chinese courts should not require relevant courts of the two countries to fully correspond to each other in terms of the type of cases or the hierarchy of courts, let alone set restrictions that the foreign judgments need to be decided by the Supreme Courts of foreign countries.
4. The "reciprocity" prescribed by the PRC Civil Procedure Law should refer to the reciprocal relationship between countries. It should not be regarded as the relationship between China and specific districts of a foreign country or a certain level of judicial authority, for this view is inconsistent with the general definition of the subject of international relations in international law and could also result in the fragmentation of reciprocal relationships.
5. When the system of a foreign country is federalism and a Chinese judgement is recognized according to a state law rather than a federal law, even though it is not enough to conclude that China has established a comprehensive reciprocal relationship with that country as a whole, it should be determined that there is at least a reciprocal relationship between China and the state of the foreign country.
It is noteworthy that the author indicates the content of the “Provisions on Several Issues concerning the Recognition and Enforcement of Foreign Civil and Commercial Judgments” (Consultation Paper) (《关于承认和执行外国法院民商事判决若干问题的规定》（征求意见稿）) in the article. The Provisions are highly likely to be the judicial interpretation currently drafted by the SPC on recognition and enforcement of foreign judgments, the exact one which is mentioned by CJO before. This shows that the judge who decides the “Wuhan case” may, to some extent, have participated in the drafting of the judicial interpretation. What’s more, the “Wuhan case” ruling is probably influenced by the said draft. Even the judge choosing to recognize and enforce the US judgment may have acted under instructions from the SPC. Therefore, the “Wuhan case” may not be a coincidence, but an omen. The importance of the “Wuhan case” is much more likely to exceed the expectations.
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Chen Yu also contributes to the post.
For more information on Recognition and Enforcement of Foreign Judgments in China, please feel free to download our CJO newsletter vol.1 no. 1.