Judges of China’s Supreme People’s Court (SPC) discussed how China could promote international cooperation in the future in recognition and enforcement of foreign judgments.
In their latest article, the SPC judges Zhang Yongjian (张勇健) and Yang Lei (杨蕾) proposed some enlightening ideas for the recognition and enforcement of foreign judgments, such as: to sign multilateral memorandums based on the Standing International Forum of Commercial Courts (SIFoCC), to sign regional memorandums for Asia based on projects of Asian Business Law Institute (ABLI), to promote all participating countries along the Belt and Road to reach consensus on presumptive reciprocity, and to establish a judicial big data platform for recognition and enforcement of foreign judgments.
The article titled “New Exploration on Mutual Recognition and Enforcement of Civil and Commercial Judgments by Judicial Organs” (司法机关相互承认执行民商事判决的新探索) was published in the “People's Judicature” (人民司法) (No. 13, 2019), a periodical affiliated to the SPC. Judge Zhang Yongjian is a former Director of the SPC’s 4th Civil Division, and now serves as the Deputy Director of the SPC’s First Circuit Court, and the judge of China International Commercial Court (CICC), while Judge Yang Lei is a judge of the SPC’s 4th Civil Division.
1. Legal Basis: Bilateral Treaties and Reciprocity
The authors believe that China should promote mutual recognition and enforcement of foreign judgments, thus procuring the free movement of judgments among nations.
According to the authors, China has signed bilateral judicial assistance agreements or treaties in civil and commercial issues with 39 countries, of which 37 agreements or treaties have entered into force. Among these 37 effective agreements or treaties, 4 of them do not provide for the recognition and enforcement of foreign judgments, involving Singapore, Korea, Thailand and Belgium, while the others have so provided for. However, given the limited number of countries having concluded such treaties with China, in the absence of relevant international treaties, Chinese courts can only determine whether to recognize and enforce foreign judgments or not based on the principle of reciprocity, as stipulated in the Civil Procedure Law (CPL) of China.
The reciprocity mentioned by authors can be classified into three categories: de jure reciprocity, de facto reciprocity and presumptive reciprocity, and Chinese courts have long adopted conservative de facto reciprocity. For relevant interpretation, you may refer to previous posts by CJO.
2. China's International Cooperation
The authors have enumerated the international judicial cooperation practice in recognition and enforcement of judgments by Chinese courts:
(1) Advocating the principle of presumptive reciprocity
On 8 June 2017, the Nanning Statement was approved on the 2nd China-ASEAN Justice Forum, Article 7 of which illustrates the principle of presumptive reciprocity advocated by Chinese courts.
(2) Signing a Memorandum of Guidance on the recognition and enforcement of judgments between courts
On 31 August 2018, the SPC and the Supreme Court of Singapore signed the Memorandum of Guidance on Recognition and Enforcement of Money Judgments in Commercial Cases (hereinafter referred to as MOG), which is the first of its kind signed by the SPC with the Supreme Court of foreign countries on recognition and enforcement of judgments. Although the MOG is not legally binding, it can provide clearer guidance for the parties to apply for recognition and enforcement of the judgments rendered by the other country’s courts in courts from both sides, thus promoting the normalization and predictability of recognition and enforcement of judgments.
(3) Establishing international commercial courts to provide a new platform for international judicial cooperation in recognition and enforcement of foreign judgments
On 29 June 2018, the SPC established the First and Second International Commercial Courts in Shenzhen and Xi'an respectively. The establishment of the International Commercial Courts has enabled China to further cooperation in the recognition and enforcement of judgments within the framework of SIFoCC, which the SPC has joined. At the first SIFoCC meeting held in London in July 2017, delegates put forward the initiative to develop a multilateral memorandum on commercial money judgments. Based on the second SIFoCC meeting held in New York in September 2018, the said issue was further discussed. The purpose of developing the memorandum is to improve the understanding of the courts about the enforcement of foreign judgments by other countries’ courts, as well as provide a reference for the parties concerned. If substantive progress can be made in this work, it will be a useful complement to the promotion of mutual enforcement of judgments in addition to international treaties.
3. How Can China Promote International Cooperation in the Future?
The authors also mention how Chinese courts can promote mutual recognition and enforcement of civil and commercial judgments in the future:
(1) Actively negotiating with relevant countries’ courts and signing memorandums on recognition and enforcement of judgments
Signing such a memorandum between countries is more flexible and efficient than signing and ratifying international treaties, amending legislation or enacting new laws. While bilateral memorandums can be signed by the courts from two countries, multilateral memorandums may also be signed by virtue of international institutions such as the SIFoCC.
China may also support regional negotiation of memorandums by regional cooperation agencies. Three SPC Judges, Zhang Yongjian, Shen Hongyu (沈红雨) and Gao Xiaoli (高晓力), now serve as Chinese representatives on the Board of Governors of the Asian Business Law Institute (ABLI) in Singapore. The Institute launched a project on recognition and enforcement of foreign judgments, aiming at identifying the best way to coordinate rules for recognition and enforcement of foreign judgments between ASEAN and its major trading partners. The authors believe that the signing of regional memorandums can be further promoted based on this project.
(2) Further expanding the consensus on presumptive reciprocity
In the authors’ opinion, the signing of the memorandum is mainly to exchange information, which does not necessarily mean that there is a reciprocal relationship between the signatories. However, the definition of reciprocity varies among different countries, which leads to uncertainty in the recognition and enforcement of judgments. Therefore, it is necessary for countries to reach a consensus on the identification of a reciprocal relationship. The authors suggest that, based on the Belt and Road Legal Cooperation Forum, the consensus on presumptive reciprocity can be further extended to all participating countries along the Belt and Road. The first meeting of the Forum was held in Beijing in July 2018.
(3) Strengthening information sharing among courts in different countries
The authors believe that we can draw lessons from the technical achievements made by Chinese courts on E-Justice and establish a judicial big data platform for recognizing and enforcing foreign judgments by all countries.
The data platform will give play to the following three roles: first, it will inform countries of the latest judgments recognized and enforced by foreign courts in real time, so as to timely identify whether there is a reciprocal relationship between domestic and foreign courts; second, the transparency and timeliness of information on the data platform will procure courts to adopt a more active and open attitude, thus alleviating the "prisoner's dilemma" in identifying the reciprocal relationship; third, the information on the data platform will provide a reference for international treaty negotiations among countries, thus promoting the formulation thereof.
4. Our Comments
CJO has been presenting the efforts made by Chinese courts in recognition and enforcement of foreign judgments to the public. Be it the article posted by us in the very beginning of CJO’s establishment, or the presentation of articles by SPC Judges Shen Hongyu and Song Jianli (宋建立), or our analysis/comments on foreign judgments recognized/enforced by Chinese courts, we are committed to presenting the prospects in this field. This article by Judge Zhang Yongjian and Judge Yang Lei once again proves our point of view.
In our previous post, where we discussed how China and Japan can begin to recognize each other's judgments, we also mentioned that the signing of a memorandum between China and Japan could be put on the agenda. Judge Zhang Yongjian and Judge Yang Lei's article shows that the signing of a memorandum is indeed worth a try.
We are also in favor of an open data platform for courts from different countries. Furthermore, we believe that it would be helpful to provide practical guidance or other possible approaches for judges in reviewing foreign judgments, in particular on the issues of authenticity, legality, and conclusiveness of a foreign judgment. Should there be such a guideline, it will facilitate the judges as well as the parties concerned, and greatly promote the efficiency of recognition and enforcement of foreign judgments.
To be more specific, in order to achieve this goal, we suggest that every jurisdiction provide the platform with the guidelines (rules or means) in determining the authenticity, legality, and conclusiveness of its domestic judgments. This function could be extremely beneficial for courts of the requested country, especially for those with an inquisitorial system (eg. China) where the judges are expected to do all demanding work. If the function is to be built in the platform, it will facilitate judges, as well as lawyers, in dealing with issues like whether the summary judgment was final and conclusive, or issues like whether a judgment was genuine, as discussed in our previous post “Two Chinese Courts Refuse to Recognize Forged Italian Judgments”, where a Chinese local court did not spot a forged foreign judgment until another local court refused enforcement of a similar judgment.