The Voice of Chinese Judges Series is a collection of selected articles of Chinese judges introduced by the China Justice Observer (CJO), to reflect their thoughts on the existing issues concerning China’s law and judicial system.
In order to reflect Chinese judges’ views on ascertainment of foreign law in trial, this post is an introduction to the article titled “From Law in Written to Law in Action” (从“纸面上的法律”到“行动中的法律”) written by Judge Guan Junbing (Judge of Yichun Intermediate People’s Court in Jiangxi province). This article is included in the “Awarded Symposia of the 28th National Courts’ Academic Session” (全国法院第28届学术讨论会获奖论文集) published in May 2017.
Chinese courts have long been perplexed by the problem of how to accurately ascertain and apply foreign law. Through an analysis of 50 cases heard by Chinese courts, the author concluded that there is a tendency to apply the lex fori, i.e., Chinese law, which is familiar to Chinese judges, on the grounds of failure to prove the foreign law, due to the fact that the judges lack convenient means in ascertainment. However, Chinese courts are now taking an active role to face this problem and adopting measures to resolve it.
The author collected and analyzed 50 cases from 1998 to 2015, in which Chinese courts applied foreign law as the governing law. Considering there are only a handful of cases applying foreign law in China, in the author’s opinion, the said 50 cases are enough to reflect the reality of the ascertainment of foreign law in Chinese judicial practice.
1.The success rate of ascertainment of foreign law remains low
Among the 50 cases, the number of cases where foreign law was ascertained and that of their counterparts are as follows:
Chart 1 shows that the rate of foreign law being ascertained is still low, only 20 out of 50 cases have been ascertained.
2. The main reason for failure to ascertain is that parties could not provide foreign law
Among 30 cases where courts failed to ascertain the exact foreign law, 16 cases were due to the failure to prove foreign law by parties. This shows that parties had difficulties to prove foreign law though many of them pleaded to apply. Even Alibaba, the biggest Internet company in China, failed to prove Cayman law, which they pleaded to apply in a trial.
3. Methods to ascertain foreign law and their respective adoption rate
Pursuant to Chinese law, the applicable foreign law may be ascertained in the following five ways: (1） provided by the litigant, (2) provided by the central organization of the country having entered into the judicial assistance treaty with China, (3) provided by Chinese embassy or consulates in that foreign country, (4) provided by foreign embassy or consulates in China, (5) provided by Chinese or foreign experts.
Among the 50 cases, the number of times each ascertainment method had been used and the number of cases where foreign law proved through such method had been adopted are as follows:
|Methods of ascertainment||Foreign experts||Chinese experts||Embassy /Consulate||Litigants||Treaties||Academic papers, official publications and other supporting materials||Internet|
|Number of usage||11||2||1||8||0||5||2|
|Number of adoption||5||2||1||4||0||4||1|
Conclusions from Chart 2:
(1) While “proof by parties” and “proof by foreign experts” are the most frequently used methods in the proof of foreign law, the likelihood of a foreign law, that was proved through such methods, to be adopted by Chinese courts remains the lowest.
(2) The ranking of the adoption rates among those methods is: (a) embassy or consulate / Chinese experts, (b) academic papers, (c) Internet, (d) litigants, (e) foreign experts.
4.Measures: platforms for discerning foreign law have been established
At present, Chinese judges are still lacking convenient and efficient methods to ascertain foreign law. Due to high workloads and strict requirements on judges to close cases on time, Chinese judges tend to avoid consuming too much time and energy on ascertainment of foreign law, in order to reduce their workload and settle cases as soon as possible. Consequently, the judges are more willing to apply the lex fori (i.e. Chinese law) which they are much more familiar with, on the grounds that foreign law cannot be ascertained.
To solve this problem, China’s Supreme People’s Court (SPC) has been successively promoting relevant organizations to establish platforms for discerning foreign law, such as the “China Institution for Discerning Foreign Law” at China University of Political Science and Law. The SPC also recommend local courts nationwide to commission these platforms to ascertain foreign law.
Notes by CJO: Platforms for discerning foreign law recommended by the SPC have now begun to play their role. At the beginning of 2018, the Tianjin Maritime Court commissioned the “China Institution for Discerning Foreign Law” at China University of Political Science and Law to ascertain Mexican law concerning an insurance contract dispute. The expert who completed the ascertainment appeared in court and responded to inquiries.
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