What you should know about foreign-related cases in the Chinese courts post 4th Plenum

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The integration of China with the outside world through investment, trading, shipping, and licensing, inevitably (in some cases) leads to litigation in a Chinese courtroom (even if a contract has an arbitration clause), as companies large and small have found out.  Some recent examples are listed below:

The Supreme People’s Court (Court) recently held its 4th National Work Conference on Foreign-Related Commercial and Maritime Adjudication (4th National Work Conference) in early November, shortly after the 4th Plenum. This is a conference that the Court organizes occasionally for judges hearing  commercial and maritime cases involving foreign parties. The Court uses work conferences to transmit the latest central legal policy, harmonize court practices consistent with those policies, and find out what the latest difficult legal issues are. (This is a practice similar to other Party/government agencies).

The 4th National Work Conference highlighted some of the provisions of the 4th Plenum:

  • Vigorously participate in the formulation of international norms;
  • Strengthen our country’s discourse power and influence in international legal affairs;
  • Strengthen law enforcement and judicial cooperation between the mainland, Hong Kong, Macau and Taiwan;
  • perfect our country’s judicial assistance systems;
  • ensure that the courtroom hearings play a decisive role.

Additionally, the Court emphasized other principles  such as –

  • vigorously asserting jurisdiction (which is also asserted vis a vis the Hong Kong courts–see this commentary on a Hong Kong divorce case), which deserves closer attention in Hong Kong;
  • Correctly applying international treaties and governing law principles.
  • Safeguarding national rights and interests.

Some background if you need it

“Foreign-related” is a concept of many years standing that means that a foreign element is involved, because of a party’s nationality, location of the property disputed, or other factors (as explained here).The concept of “foreign-related” further relates to other important questions, such as selecting arbitration outside of China and foreign governing law.

Following national work conferences, the Court  often issues follow-up “Conference Summaries” to guide the lower courts on the agreed upon approach to new or contentious issues. These do not have the status of a judicial interpretation but courts refer to them when deciding cases. According to Court rules, courts can cite judicial interpretations (but not Conference Summaries).  It doesn’t seem that the Conference Summary has yet been issued.

Status update on foreign-related cases in the Chinese courts

In China, 203 intermediate and 204 basic level courts have jurisdiction over first instance foreign-related cases.  In the period 2010-end June 2014, the Chinese courts heard 287,262 first and second instance cases foreign-related maritime and commercial cases, an increase of 41% over the previous period. The cases are mostly heard by courts in coastal areas, but as foreign investment goes inland, disputes inevitably follow.

Head’s up for the foreign legal community

Following the Work Conference, Judge Luo Dongchuan, head of the #4 Civil Tribunal of the Court, was interviewed by Legal Daily. Judge Luo mentioned many important future legal developments, highlighted below.

1. Reforms relating to four important practical issues

  • Establishing an electronic platform for service of legal process outside of the jurisdiction (intended to mean Hong Kong, Macau, Taiwan, as well as foreign countries);
  • Investigating and obtaining evidence (this is likely linked to current anti-corruption efforts by the Chinese government to pursue (and retrieve assets from) corrupt officials who have settled overseas)
  • Determining foreign law, through establishing a database of experts (Chinese and foreign).
  • Restricting parties to litigation from leaving China (Chinese legislation on these procedures is difficult to parse (see my earlier article on this subject and another related one).

2. Maritime court related reforms

  •  The Court is considering establishing maritime circuit courts, to deal with disputes arising inland arising from logistics cases in the maritime courts.
  • The Court intends to promote the maritime courts and a forum for hearing cases involving maritime pollution from on-shore sources (the largest source of maritime pollution China).
  • The Court is looking into reforming the maritime court’s jurisdiction, so that it will have jurisdiction over civil, criminal, and civil maritime cases.

3. Recognition of foreign court judgments

Judge Luo mentioned that the Court is researching the recognition and enforcement of foreign court judgments involving property.  (This appears to be at an early stage.)

3. Arbitration related reforms

Judge Luo emphasized that the Court supports arbitration.

Because arbitration is so important, the Chinese courts will try to uphold the validity of vague [poorly drafted!] arbitration clauses.

A new judicial interpretation on the judicial review of arbitration-related issues will go into the Court’s judicial interpretation drafting plan in 2015.

The Court intends to reform jurisdiction in judicial review of arbitration issues, to consolidate them in specialized courts, expanding the pilot projects underway in Guangdong, Inner Mongolia, and elsewhere (as designated by the Court.  Earlier this year, the Guangdong Higher People’s Court published a report on its experience so far.

4. Electronic platform

The Court is considering establishing an electronic platform for foreign-related cases.  This may relate to making litigation procedures for parties more transparent.

 Some unsolicited suggestions for the Supreme People’s Court

Consider the following:

  • Overhaul the Court’s English language platform, so that it provides useful official information for the foreign reader who does not know Chinese;
  • Issue more draft judicial opinions for public comment and give the public (foreign and Chinese) a more sensible time period to comment, particularly for draft regulations relating to any of the issues discussed above. The issues mentioned above are very important to the foreign business and legal community.  The current 30 day time period extremely short by international standards.  Given the opportunity, international and foreign organizations and law firms will comment, but it takes time for translation and busy lawyers and other legal professionals to make comments.
  • Consider what can be done to make the Chinese courts a more user-friendly forum for international commercial disputes.  For example, consider what is needed for China to become a party to the Hague Convention on the Legalization of Foreign Public Documents (which will involve reforms by multiple government departments) and other related conventions.  The current system of legalization of foreign evidence is difficult for foreign parties and puts the Chinese system behind the 107 countries in the world that are signatories).

Comment now on China’s draft Anti-Domestic Violence Law

Unknown-2After at least 15 years of pressure by women’s groups, lawyers, and publicity in China, as well as by the international community, the draft Anti-Domestic Violence was issued by China’s State Council Legislative Affairs Office on November 25. It follows many years of academic and professional exchanges and international conferences on domestic violence legislation.  The timing may be to coincide with the UN’s Days of Activism Against Gender Violence.

The comment period is one month.  The draft is available here.  An English translation of the draft and official explantion has been prepared by Chinalawtranslate.com (thank you to the team). The translation of the draft is available here and the explanation here. The draft contains important content, including:

  • definition of domestic violence;
  • establish a domestic violence reporting system
  • protection orders;
  • requirements for courts in matters involving domestic violence;
  • local government establishment of domestic violence shelters.
  • Unmarried couples are not covered by the draft law (but by other legislation).  (Drafts of local legislation have also started with this position.  In Shenzhen, the Procuratorate advised against this, as mentioned in this earlier blogpost).

Comments may be made electronically at: fjtbl@chinalaw.gov. cn; or by mail at: Box 2067, Beijing, PRC 100035, attention Anti-Domestic Violence Law Consultation; (北京市2067信箱(邮政编码:100035),请在信封上注明“反家庭暴力法征求意见).

After the State Council finalizes the draft, it will submit it to the National People’s Congress (NPC), for further discussion and possibly more public consultation.  It appears passage of the law will come in 2015.  Once its passed, further legislation will be needed, including a judicial interpretation by the Supreme People’s Court, to address the evidentiary and other issues in the law.  Earlier posts on domestic violence are linked here, there, and there.  Local governments have started drafting their own legislation, including Shenzhen and Guangdong.

The Supreme People’s Court speaks out on reforming China’s death penalty

The top story in the Supreme People’s Court Wechat Feed of 23 November–how China should reform the use of the death penalty. Over the weekend, a conference was held by China’s Academy of Social Sciences on the death penalty, which brought in the Supreme People’s Court, Supreme People’s Procuratorate, and other government departments, as well as experts from Tsinghua University, China University of Political Sciences and Law, and others. Among the topics discussed was China and the world.

Hu Yunteng, head of the Court’s Research Office  said that death penalty reform needs to focus on how to use legislative and judicial measures to reform the death penalty, with further work needed on the following:

  • Reducing the number of crimes that carry the death penalty.
  • Reducing the judicial use of the death penalty.
  • Amending substantive law to reduce its use.
  • Amending procedural law to control its use.
  • Adopting a hearing centered procedure in death penalty review cases.  This includes the making use of the important role of lawyers in the death penalty review process and providing legal assistance to those who need it. (This development was highlighted in this blogpost).

Judge Hu stated that the death penalty will be retained, but the goal is for the death penalty to be applied 100% correctly and to avoid mistaken cases.

Foreign and international organizations have been working with Chinese counterparts on death penalty reforms for a number of years.  In China, law reform efforts may involve a long incubation period.

The world awaits the results of the hard work needed to implement these reforms.

 

 

 

The Supreme People’s Court Observer and China’s National Climate Change Plan 2014-2020

From the NRDC website

(From the NRDC website)

The Supreme People’s Court Observer recently worked with Barbara Finamore, Senior Attorney and Asia Director of the Natural Resources Defense Council (NRDC), in analyzing an crucial development concerning China’s climate change plans,  the National Development and Reform Commission (NDRC)’s  National Climate Change Plan for 2014-2020 (National Climate Change Plan).  (For those readers who are not familiar with the NRDC, it is one of the US’s leading non-governmental environmental organizations and has worked with Chinese government, academic, and non-profit organizations for about 20 years.

The National Climate Change Plan,  approved by the State Council, was issued in late September but released in early November. Among the many goals identified by the NDRC are the development and expansion of climate change-related policy and legislation. It is likely that the Chinese courts will need to handle climate change-related litigation some time in the future.

The National Climate Change Plan also encourages Chinese entities to cooperate with international organizations (including the World Bank and Asian Development Bank) and foreign countries in considering foreign experience that can be adapted to the situation in China.  It is likely that climate change innovations that are successful in China will be promoted  overseas.

Our blogpost, where we analyze the latest climate change developments in  their international and domestic Chinese context, is linked here. Thank you Barbara, for giving me this opportunity!

Making China Law Bloglists Around the World

Thank you to Dan Harris, of the China Law Blog, and Mark Cohen, of the China IPR blog for pointing out that Carli Spina of the Harvard Law School library has listed the Supreme People’s Court Monitor among its recommended China law resources.

I am honored that the following institutions have listed my blog among their resources:

  • Congressional Executive Commission on China
  • US-Asia Law Institute (New York University)
  • Harvard Law School Law Library
  • Tulane University Law School Law Library
  • Oxford University’s Bodleian Library
  • University of Glasgow Chinese Studies
  • University of Leiden Chinese Studies
  • University of Sydney Law Library.

谢谢!

 

 

Tianjin’s environmental crisis and the courts

Tianjin's air pollutionTianjin’s environmental problems are well documented, as this presentation by a (Nankai University) Tianjin based professor of environmental sciences describes. Chinese pollution statistics list Tianjin as one of the top 10-15 polluted Chinese cities.  In the past few days, the national court website carried a report by the Tianjin higher people’s court on environmental cases, likely meant to help the Supreme People’s Court (Court) as it increases judicial resources on the environment and natural resources, and to fulfill  objectives set out in the Court’s July, 2014 policy document on environmental cases, Opinions of the Supreme People’s Court on Comprehensively Strengthening Judicial Work Related to Environmental Resources to Provide Effective Judicial Safeguards to Promote the Construction of an Ecological Civilization.  The Tianjin court identified three major problems:

Disconnect between the number of cases and the polluted environment

  • As of June, 2014, the courts had only accepted 43 criminal pollution cases, most of which arose in the last 3 months of last year, with two new ones this year, and no cases from 2011-until the middle of 2012.
  • There have been only 2 environmental administrative cases (appeals from administrative review decisions by the environmental protection authorities) so far in 2014.
  • There have been a tiny number of civil cases. The Tianjin courts have not accepted any public interest environmental civil suits.

Many difficulties with environmental cases

The Tianjin judges listed the following difficulties:

  • Obtaining evidence.
  • Obtaining evidence sufficient to document the causal link between the acts of the polluter and the pollution.
  • Obtaining competent technical evaluation.
  • Because much of the evidence in criminal cases comes from the enforcement arm of the environmental protection departments, but their evidentiary requirements are different from those demanded in criminal proceedings, the evidence they provide often cannot be used in court, because it has not been handled properly.
  • The environmental protection departments are often unable to supply evidence of causation as well as harm caused by pollution.
  • The environmental protection departments fail to provide historical data about pollution over time.
  • People petitioning about pollution.

Personnel inadequately trained

The study found that the judges assigned to the environmental panels lacked sufficient training.

The solution identified by Tianjin judges

  • More training on environmental law for judges.
  • Establish environmental courts only when conditions are suitable.
  • Involve more environmental specialists as people’s assessors to fill the technical expertise gaps.
  • Establish better liaison channels with other authorities, including environmental protection agencies and the procuratorate.
Tianjin pollution

Tianjin pollution

What can be done to improve the situation?

It appears that a critical issue in environmental criminal prosecutions is a problem with evidence.  The Supreme People’s Court Observer has the following suggestions:

1) if the Tianjin court has identified a prevalent problem, that  local environmental protection bureaus need further training on how to work with the prosecutors and the courts to prepare evidence that will hold up in court, this is an area in which training can help.  If expertise lies within the Ministry of Environmental Protection, the Supreme People’s Procuratorate and Supreme People’s Court should create a training session for local environmental protection bureau officials that can be duplicated in each province. If foreign expertise is needed, perhaps the US Environmental Protection Agency or other foreign governments, international organizations, or environmental NGOs can add this to their exchange agenda.

2) Rather than see ordinary citizens as a problem, local courts can work with local Bureau of Civil Affairs to train local environmental NGOs on the type of evidence needed to document environmental pollution cases. Some of these local NGOs include retired engineers and others with technical expertise.

Updated with further analysis: What does the 4th Plenum mean for death penalty reviews?

video interview in a death penalty review case

video interview in a death penalty review case

In a  press report in Southern Weekend last month (summarized in this report), the Supreme People’s Court (the Court) revealed that  an important legal reform related to death penalty reviews is forthcoming–institutionalizing legal representation in death penalty reviews.  It appears that this development has not yet been reported in the foreign press. This development, and others still in the works, are likely linked to the following provisions in the 4th Plenum Decision:

  • For appeals from dissatisfaction with effective judgments or decisions of judicial organs, gradually implement a system of lawyer representation. Bring appellants unable to hire a lawyer within the scope of legal aid.
  • Advance systemic reform in litigation with trial at the center;
  • complete effective guards against unjust, false and wrongfully decided cases.
  • bring about a system of lifetime responsibility for case quality and wrongful cases accountability system.

The Southern Weekend report, now more fully summarized by the Duihua Foundation  was partially reported in the foreign press, thanks to their earlier summer which missed this important development. (A full translation of this article would be helpful to non-Chinese readers interested in this issue).

(This reform caught my attention because because I raised this issue when conducting an interview at the Supreme People’s Court in the early 1990’s, when researching my 1993 Supreme People’s Court article in the Journal of Chinese Law.)

Some background on death penalty review in the Court

As many others have described, death penalty review is carried out solely within the Court (in contrast to the period that I wrote my article) in an administrative procedure (my article describes the procedure at the time, and other articles describe the current process). The Southern Weekend article describes it as taking place in an unmarked office building away from  Court headquarters, guarded by a member of the Armed Police.

The Court has increased the number of criminal tribunals from two (when I wrote about this procedure 20 years ago in my article) to five tribunals, but the Court has not issued regulations setting out their jurisdiction.  According to the Southern Weekend reporters, four of the tribunals, which review cases based on geography and subject matter, have about 70 staff (both judges and support staff), while one has about 50 staff and reviews cases only on a subject matter basis. According to Southern Weekend, there is some flexibility in the jurisdiction of the criminal tribunals.(See this report for a translation of Southern Weekend’s chart.)

Institutionalizing legal representation in death penalty reviews

The Southern Weekend article reported that a senior member of the one of the criminal tribunals had revealed that the Court has drafted regulations on institutionalizing legal representation in death penalty review and it is hoped that they will be issued before year end.  According to the article, the draft regulations are entitled:

死刑复核案件听取辩护律师意见的若干规定 (Regulations on Considering the Views of Defense Lawyers in Death Penalty Review Cases).

This reform was flagged in Article 240 of the 2012 Criminal Procedure Law:

When the Supreme People’s Court reviews a death case, it should examine the defendant; if the defense attorney requests, it should hear the opinion of the defense attorney.

Article 42 of the 2012 Supreme People’s Court interpretation of the Criminal Procedure Law provides:

When the SPC performs final review of a death penalty case and the defendant has not retained a defender, the legal aid organization shall be notified to appoint a lawyer to provide him a defense.

A statement of principle in an a Court interpretation does not translate immediately into systemic reform.  It is apparent from the Southern Weekend article, a 2013 article on the Court’s website, and other sources that the mechanism for doing so is being considered within the Court and that local justice bureaus are implementing regulatory changes.

In the Southern Weekend article, a Court judge pointed out what the academics and defense lawyers have been saying, that many persons sentenced to death are from the bottom of society and do not have a lawyer defending them. (It appears from this interview with the President of the Zhejiang Higher People’s Court that Zhejiang has been taking the lead in working with the justice authorities to have legal aid provided to criminal defendants.)

In an article earlier this year in the Legal Daily (organ of the Communist Party Central Political Legal Committee), Professor Liu Wenren of the Law Institute, China Academy of Social Sciences emphasized the necessity of involving lawyers in the death penalty review process.  A Chinese lawyer has established a website for death penalty review lawyers, highlighting cases where legal representation has been effective.  Jiangsu province justice department has implemented  regulations on giving defense lawyers rights in death penalty review cases.

It is unclear what provisions will be contained in these regulations, but it is hoped that they include a provision for legal aid as well as rights for lawyers to review the case file.

Changing the form of death penalty review: when will the time come for this reform?

It appears that the Court is considering changing the form of death penalty review to a hearing-centered procedure.  (Dean Zhao Bingzhi of Beijing Normal University, College of Criminal Law Science, Professor Liu Wenren, and  others have been advocating this for some years (see this in this 2012 interview with Professor Zhao in Legal Daily).) Movement on this issue can be seen from the following:

  • In June, 2013, the Court held its first hearing in a death penalty review case, reported here. In July, 2013, Legal Daily published a follow-up article in which it was suggested that more hearings will take place.
  • In 2013, the Court website published an article (written by a Jiangxi judge) on deficiencies in the death penalty review procedure, suggesting that a hearing procedure be adopted.
  • In July, 2014, the China Law Society held a training session for defense lawyers in death penalty cases, at which four of the five criminal tribunal heads spoke.

The Supreme People’s Court Observer understands these developments to be linked to the goal in the 4th Plenum Decision of bringing about a system of lifetime responsibility for case quality and a wrongful cases accountability system. Going to a hearing procedure for death penalty review cases in which defendants have legal representation would go far to “complete effective guards against unjust, false and wrongfully decided cases” and at the same time would better protect the hundreds of Court judges who will bear lifetime responsibility for their decisions in death penalty cases.

If there are errors in the above analysis, please use the comment function.

Those further interested in this important topic can refer to one or more of the many articles, books, and reports in English (and Chinese).  In contrast to the early 90’s, death penalty review in China has now attracted the attention of major scholars and international organizations.