Monthly Archives: November 2017

arbitration, big data, foreign-related cases, Hong Kong, Macau, Taiwan

Supreme People’s Court strengthens judicial review of arbitration

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liu guixiang at arbitration summit
Judge Liu Guixiang speaking at the China Arbitration Summit

At China’s Arbitration Summit in late September, Liu Guixiang, Chief Judge of the #1 Circuit Court, called attention to a notice that the Supreme People’s Court (SPC) issued earlier this year to strengthen judicial review of arbitration. The notice (Notice concerning some questions regarding the centralized handling of judicial review of arbitration cases关于仲裁司法审件归口办理有关问题的通知) is linked to the likely increasing number of cases involving judicial review of arbitration matters, linked to the increasing number of arbitrations involving Chinese parties (and the One Belt One Road initiative) both in China and elsewhere in the world, including Hong Kong International Arbitration Centre.  (The notice highlights data collection problems).

The notice, reproduced below, is not an SPC judicial interpretation. Unlike judicial interpretations, notices are not required to be published. It seems that the SPC itself has not officially published it, but several official websites have published it, as have a number of Wechat accounts.

A quick search reveals that the notice drew on  a 2014 study by the Guangdong courts summarizing the results of pilot projects  (including Shenzhen) that the SPC commissioned, involving cooperation with the now independent Shenzhen Court of International Arbitration. As is usual, Guangdong and Shenzhen have led the way as pilot areas for judicial reform. The study highlighted a list of problems with the way lower courts review arbitration related issues, including lack of consistency in reviewing cases. The study also highlighted problems in tracking case data.

As Judge Liu also mentioned (as has this blog), the SPC is working on a comprehensive judicial interpretation on that subject).  That judicial interpretation is still being drafted, with the #4 Civil Division of the SPC taking the lead.

A very rough translation and some comments written in italics follow. (Many thanks to an anonymous and well-informed follower of this blog for bringing the notice to my attention and for some thoughts.) Please call translation glitches/mistakes to my attention.

最高人民法院
关于仲裁司法审查案件归口办理
有关问题的通知

法[2017]152号

Supreme People’s Court

Notice Concerning Some Questions regarding the centralized handling of judicial review of arbitration cases

Fa (2017) #152

各省、自治区、直辖市高级人民法院，解放军军事法院，新疆维吾尔自治区高级人民法院生产建设兵团分院：

To the provincial, autonomous region, directly administered municipality higher people’s courts, People’s Liberation Army Military Court,  Production and Construction Corps Branch of the Xinjiang Autonomous Region Higher People’s Court:

为依法正确审理仲裁司法审查案件，保证裁判尺度的统一，维护当事人的合法权益，促进仲裁事业健康有序发展及多元化纠纷解决机制的建立，现就各级人民法院办理仲裁司法审查案件的有关问题通知如下：

To try correctly judicial review of arbitration cases according to law and guarantee a unified yardstick for judicial decision-making, protect the legal rights of parties, promote the healthy and orderly development of arbitration matters and the establishment of a diverse dispute resolution mechanism, we notify the various levels of the people’s court handling judicial review of arbitration cases of the following:

一、各级人民法院审理涉外商事案件的审判庭（合议庭）作为专门业务庭（以下简称专门业务庭）负责办理本通知规定的仲裁司法审查案件。

I.  The trial divisions (collegial panels) trying foreign-related commercial cases shall be the specialized trial divisions (below, “specialized trial divisions) responsible for undertaking the judicial review of arbitration as set out in this notice.

This means that SPC is requiring trial divisions (or collegial panels, in smaller courts) handling foreign-related commercial matters to be responsible for reviewing the arbitration related matters described in the next paragraph. It is a plus for competency/consistency in arbitration-related matters.

二、当事人申请确认仲裁协议效力的案件，申请撤销我国内地仲裁机构仲裁裁决的案件，申请认可和执行香港特别行政区、澳门特别行政区、台湾地区仲裁裁决的案件、申请承认和执行外国仲裁裁决等仲裁司法审查案件，由各级人民法院专门业务庭办理。

II.  In cases in which a party applies to have the validity of an arbitration agreement recognized, cases in which application is made to cancel a domestic arbitration commission’s award, cases in which application is made to recognize (认可) and enforce a Hong Kong SAR or Macau SAR arbitration award, recognize (认可) and enforce a Taiwan area arbitration award, application is made to recognize (承认) and enforce a foreign arbitral award, shall be handled by the specialized trial divisions of each level of court.

This paragraph describes the types of cases covered by the notice–the types of judicial review of arbitration matters and that these cases should be handled by the specialized trial division of each level of court designated in the paragraph I. There is a difference in terminology (bolded above, but not in the original Chinese) when referring to the recognition of arbitral awards from Hong Kong, Macau, and Taiwan as distinguished from foreign arbitral awards, emphasizing that awards from these jurisdictions are considered part of “one country.”  Notice that cases involving domestic arbitration awards or disputes over the validity of an arbitration agreement to submit a dispute to domestic arbitration are also to be reviewed by the specialized trial division.  A big plus for consistency and competency in judicial review of arbitration matters.

专门业务庭经审查裁定认可和执行香港特别行政区、澳门特别行政区、台湾地区仲裁裁决，承认和执行外国仲裁裁决的，交由执行部门执行。

When a specialized trial division, after review, has ruled to recognize and enforce a Hong Kong Special Administrative Region, Macau Special Administrative Region, Taiwan Region arbitration award, recognize and enforce a foreign arbitral award, the enforcement shall be transferred to the enforcement departments for enforcement.

三、一审法院作出的不予受理、驳回起诉、管辖权异议裁定涉及仲裁协议效力的，当事人不服该裁定提起上诉的案件，由二审人民法院专门业务庭办理。

III.  When the first instance court makes a ruling which relates to the validity of an arbitration agreement relating not to accept, to reject a filing or objection to jurisdiction, and a party  disagrees with the ruling and appeals, the specialized trial division of the second instance court should handle it.

This  provision channels appeals relating to arbitration matters to specialists in the second instance courts, again a plus for competency and consistency.

四、各级人民法院应当建立仲裁司法审查案件的数据信息集中管理平台，加强对申请确认仲裁协议效力的案件，申请撤销或者执行我国内地仲裁机构仲裁裁决的案件，申请认可和执行香港特别行政区、澳门特别行政区、台湾地区仲裁裁决的案件，申请承认和执行外国仲裁裁决的案件，以及涉及确认仲裁协议效力的不予受理、驳回起诉、管辖权异议等仲裁司法审查案件的信息化管理和数据分析，有效保证法律适用的正确性和裁判尺度的统一性。此项工作由最高人民法院民事审判第四庭与人民法院信息技术服务中心具体负责。

IV. Each level of people’s court should establish a centralized administrative platform for the judicial review of arbitration awards, to strengthen the informatized management and data analysis of cases regarding applications to confirm the validity of an arbitation agreement, cases regarding applications to cancel or enforce arbitration awards of our domestic arbitration institutions, applications to recognize and enforce Hong Kong Special Administrative Region, Macau Special Administrative Region, Taiwan Region arbitration awards, cases regarding applications to recognize and enforce foreign arbitral awards, and cases relating to the judicial review of arbitration such as refusal to accept, reject the filing, or objection to jurisdiction and others relating to the confirmation of the validity of an arbitration agreement; the effective guarantee of the correct application of law and of a unified yardstick for judicial decision-making.  The #4 Civil Division of the Supreme People’s Court and the People’s Courts Information Technology Service Center shall be specifically responsible for this work.

IV. This paragraph requires a platform to be established to enable better data collection of arbitration related cases. Data collection appears to be an ongoing issue for the courts.  2015 SPC rules on case file numbers (thank you to Chinalawtranslate.com for this translation), are aimed to create more consistency in filing numbers for cases, and will also be helpful in this process. Inconsistency in case files numbers was identified as a problem in the Guangdong study.) The SPC’s #4 Civil Division (in charge of cross-border civil and commercial matters) and the Information Technology Service Center are the ones responsible for ensuring this platform works.  The notice does not require data results to be made public. The legal and professional public (in China and elsewhere in the world) would look forward to regular big data reports on this.

最高人民法院

2017年5月22日

Supreme People’s Court

May 22, 2017

_______________________________________

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court reforms, foreign courts

“Clerking” on the Supreme People’s Court

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20170824220614_20886
SPC President Zhou Qiang & Political Dept head Xu Jiaxin with 3rd group of interns, including a Peking University School of Transnational Law student

One of the unexpected influences of the United States system on the Chinese courts is the Supreme People’s Court’s (SPC) elite internship program, instituted in 2015.  (The German system of requiring law students to intern in courts, too, is an apparent influence). The word of mouth is that the SPC leadership noted that the US Supreme Court clerkships attracted top law students and wanted to do something similar in China.

The program is a small example of “foreign beneficial experience,” about which I wrote about earlier this year. The official position on borrowing/referring to foreign legal models is set out in the 4th Plenum Decision (as I wrote earlier):

Draw from the quintessence of Chinese legal culture, learn from beneficial experiences in rule of law abroad, but we can absolutely not indiscriminately copy foreign rule of law concepts and models.

President Xi Jinping’s further gloss on this is:

Outstanding products of rule of law culture in the world shall be actively absorbed and used for reference, but they must be filtered, they must be selectively absorbed and transformed, they may not be swallowed whole and copied (对世界上的优秀法治文明成果，要积极吸收借鉴，也要加以甄别，有选择地吸收和转化，不能囫囵吞枣、照搬照抄).

Unlike Supreme Court clerkships, which are done by recent law graduates, SPC interns are generally required to be students, generally at the master’s or PhD level.  The SPC selects several dozen outstanding students (the number seems to vary) to participate in the sixth month program.  They must be recommended by their law schools (each runs its own selection process)–see this notice by China University of Political Science and Law.  Several of our School of Transnational Law Students are participated.  Applications are made to the Political Department of the SPC (it handles personnel matters) rather than to individual judges.  The program is part of the SPC’s outreach to educational institutions and efforts to create a more elite judiciary.

While most requirements are in line with internships in most parts of the world and the stress appears to be on outstanding academic qualifications, among the requirements for the program is having a firm political stand (政治立场坚定) (it seems to be standard for internships in Chinese government/or government affiliated institutions) and the application form asks about the political view of family members.

In 2017, preference was given to Beijing area law schools because no housing was provided, and from the lists of accepted interns, it is clear that more Beijing area interns are accepted.  As of 2019, however, the SPC provided accommodations.  For Beijing based students, it likely means a long commute from the law schools based in the suburbs to be at work in the early morning.

Each intern is assigned a mentor, generally a presiding judge (审判长), therefore judge with long years of experience.  Interns are primarily assigned to the substantive/trial divisions (业务部门)  of the SPC and also other SPC offices including:

environmental and natural resources division;

criminal divisions;

State Compensation Office;

Administrative Division;

Enforcement Bureau;

Trial Supervision Division

Civil divisions;

Judicial reform office.

It seems that many were confronted with being assigned to work in areas of law that they had never before encountered, or being involved in work they had never before done. Some worked on judicial interpretation drafting,  many sat in on collegiate panel discussions of cases, assisted in case review, and assisted the teams of judges working on death penalty review while many helped their mentors with related research and administrative matters, finding their work reviewed meticulously, and spending long hours along with their (overworked) mentors.  Given the highly theoretical orientation of Chinese legal education, particularly at the graduate level, the interns (and their mentors) likely encountered major challenges along the way.

The circuit courts, too are taking interns, although they each seem to have their own requirements. The #2 Circuit takes interns from the law schools in Northeast China, the＃6 Circuit Court from the Northwest provinces, the #3 Circuit from law schools within its Circuit, while the #1 Circuit Court has taken interns from the Shenzhen-based law schools (School of Transnational Law and Shenzhen University) as well as law schools in other parts of the country.

As part of its outreach to the academic community, the SPC also has a smaller program for legal scholars, seeking to attract elite academics.  That program limited to Chinese nationals from Chinese law schools, who generally should not be over the age of 50! I look forward to the day when the SPC takes note of the “foreign beneficial experience” of the Federal Judicial Center, which has welcomed many Chinese judges over the years as Visiting Fellows.  The program has no age restriction. The late  Judge Zou Bihua, whom President Xi Jinping praised for guarding “equity and justice and was brave to face tough obstacles in judicial reform, [and] showed his loyalty to the Communist Party of China (CPC) and the people,” had been a Visiting Fellow in 2000. He is one of the foreign judges featured on the Federal Judicial Center’s Visiting Fellows webpage.