Supreme People’s Court to Issue White Paper on Judicial Review of Arbitration and Related Model Cases

For a longer project, I am carefully analyzing the Supreme People’s Court’s (SPC’s) 2019 Opinions on the People’s Courts Providing Further Services and Guarantees for Belt & Road Construction (BRI Opinion #2) (关于人民法院进一步为“一带一路”建设提供司法服务和保障的意见, about which I previously wrote in January (at some length). Each phrase in an SPC Opinion has a particular meaning and usually a backstory. As I said in January, it takes knowledge of a constellation of related policies and practices to decode SPC Opinions.  Those of us outside the Chinese court system realistically can be expected to identify only a portion of the references. This blogpost focuses on two phrases in Article 25 of BRI Opinion #2–“publish typical (model/exemplary) cases on an irregular basis, issue white papers at a suitable time (不定期公布典型案例, 适时发布白皮书).  

What’s new?

In public speeches this month (August, 2020), two SPC judges revealed that the suitable time for issuing a white paper and model cases somewhat related to the BRI is “soon.”  As I (and many others) have written, the SPC has used the political importance of the BRI to improve the legal infrastructure for and personnel handling the judicial review of arbitration.  (As others have written, under Chinese arbitration law, the courts have a greater role in the review of arbitration.), Judge Shen Hongyu, deputy head of the SPC’s #4 Civil Division revealed in a speech in early August, reported in Legal Daily, that “in the future, a bilingual white paper annual report on the judicial review of arbitration in 2019 and analysis of typical cases on the judicial review of arbitration will be issued” (将发布《2019年度仲裁司法审查案件白皮书》(中英双语版)以及仲裁司法审查典型案例分析).  The same news was repeated by #4 Civil Division Judge Ma Dongxu and Judge Shen Hongyu in a recent conference (held on-line) of the Chinese Arbitration Law Society.

White Papers

Issuing a judicial review of arbitration white paper would be a first for the #4 Civil Division and a step forward in transparency about the work of the SPC and judicial review of arbitration in particular. From the title, I surmise that the white paper will be nationally focused, similar to the SPC’s annual bilingual intellectual property white paper and environmental protection white paper. Although I have previously written about difficulties in locating full text versions of Chinese court white papers, I am quite sure that this white paper will be made accessible.

Late last year, the Beijing #4 Intermediate Court (and China University of Political Science and Law) issued a big data study of cases involving the judicial review of arbitration cases (analyzed here in English) I surmise that the SPC’s white paper it will show the success of the new judicial interpretations that the SPC issued in late 2017 and related notices as well as the pro-arbitration policy of the SPC. Greater openness about the judicial review of arbitration would be welcome by all interested parties. It is unclear whether the #4 Civil Division will give consolidated information about the cases that it reviews through the Prior Approval system, which is its version of the qingshi (请示,request for instructions), about which I have previously written.  This article in the Kluwer Arbitration Blog provides a good summary of Chinese practitioner objections to the request for instruction procedures in the Prior Approval system.

Publishing typical cases

As I wrote last month and many times previously on this blog, the SPC frequently uses typical/model/exemplary cases, in several ways, including  to supplement judicial interpretations and legislation.  That was made clear by last month’s guidance on similar case search. The #4 Civil Division (the cases are issued by the SPC itself, of course) and the Supreme People’s Court Intellectual Property Court (SPCIPC) often use typical cases in analogous ways–unifying judicial standards. The press release that the SPC released in June on typical cases involving ship crew members was by SPC standards, quite blunt in pointing out the inadequacy of related law.  (“Our country has not formulated a special crew law.. it lacks more targeted regulations…Typical cases combine the characteristics of the protection of the rights and interests of seafarers, analyze the law and reasoning, and fill the gap between the norms and the facts by extracting the main points of the judgments (我国尚未制定专门的船员法…缺乏更有针对性的规定。典型案例结合船员权益保护的特点,析法说理,通过裁判要旨的提炼,填补规范与事实之间的空隙)

Justice Luo Dongchuan, formerly the SPC vice president responsible for both the #4 Civil Division and the SPCIPC pointed out the gap-filling role of typical cases more discretely. (He has since been transferred to Fujian Province to serve as Secretary of the Provincial Party Committee’s Political-Legal Commission).The SPC issued BRI-related typical/model cases in 2015 and 2017  and BRI guiding cases in 2019.   (For those interested, Stanford Law School’s Guiding Cases Project has translated the model and guiding cases (note that there is a trademark symbol for B & R cases). The legal rules in typical/model cases and guiding cases may eventually be incorporated into a judicial interpretation or legislation (explained in my earlier article).

Importance of the White Paper

I wrote in December of last year that one aspect of being in a leadership role in the SPC (referring to the president, vice presidents, division heads, deputy heads, and  their equivalents in the affiliated institutions of the SPC) is ensuring that policies, actions, initiatives, and other decisions hit the target of being politically correct (post 19th Party Congress and post 4th Plenum) while being “problem-oriented,” that is, addressing relevant practical issues.  Judge Shen skillfully hit that target in her speeches. She linked her first presentation to language in the Decision of the 4th Plenum of the 19th Party Congress, stating that “promoting external publicity on the rule of law and spreading the voice of the rule of law in China is an important manifestation of serving the overall situation of the Party and the country ( 推进对外法治宣传,传播中国法治声音,是服务党和国家工作大局的重要体现). As I asked in January, does it hit the target with foreign audiences? Is engaging special publicity for foreigners in fact useful in reassuring foreign governments, foreign state-owned companies, commercial entities, and individuals that their dispute is best heard in China?

Rather than special publicity, the bilingual white paper and model cases, aimed at both domestic and foreign audiences, are in fact better vehicles by which the domestic and foreign legal communities can assess how Chinese courts supervise arbitration, and how that compares to other jurisdictions.  Because many trade, investment, and licensing agreements involving Chinese parties have arbitration clauses, this white paper is sure to be reviewed carefully by many. 

 

China-Belarus Judicial Cooperation under the Belt & Road Initiative

 

Official meeting of President Xi Jinping with Belarus President Lukashenko, 2016

Guest post by Safia Yablonskaia*

Belarus is an Eastern European country located between the European Union and Russia, recently in the news. This blogpost analyzes judicial cooperation between China and Belarus, under the Belt & Road Initiative (BRI), both bilaterally and through China-led international organizations such as the Shanghai Cooperation Organization and speculates on the possible impact of current events in Belarus.

Bilateral Judicial Cooperation between Belarus and China under the BRI

The scope of cooperation between China and Belarus has constantly been expanding in a broad range of areas, especially after China initiated the BRI. However, before 2016, the meetings and agreements rarely focused on judicial cooperation. Although the two countries signed a treaty on civil and criminal judicial assistance in 1993 , one of the only times the countries expressed the intent to expand judicial cooperation was at a 2007 meeting of the National People’s Congress (NPC) Standing Committee and Legislative Affairs Commission representatives with the judges of the Constitutional Court of Belarus. The sides discussed “the commonalities in the constitutional principles on which the two countries’ political systems operate”.

The meeting of the President of Belarus Aleksandr Lukashenko on September 29th 2016 with President Xi Jinping [in the photo above] appears to have served as the stimulus for a rapid increase in the level of judicial cooperation. At the meeting, the leaders signed a Belarus-China joint declaration on the establishment of relations of all-round strategic partnership and mutually beneficial cooperation. In the declaration, the sides agreed to continuously deepen mutual political trust and cooperation in various fields, to build up contacts between peoples and humanitarian exchanges, to enrich the component of the Belarusian-Chinese relations of comprehensive strategic partnership, and to develop “all-weather friendship.” Considerable attention in the declaration was also paid to joint promotion of the BRI. During that meeting, President Lukashenko expressed his admiration for the BRI, saying that he understands its importance in strengthening multipolarity of the world as the basis for its sustainability.

One and a half months after the two state leaders met, the cooperation between the Chinese and Belarus legal authorities began to improve. In November 2016, the Deputy Head of the Belarus Presidential Administration Valery Mitskevich held several meetings with senior Chinese officials concerning the cooperation in the area of the rule of law. The then Secretary of the Central Political- Legal Committee (and a Politburo member) Meng Jianzhu  and Valery Mitskevich signed “The Cooperation Agreement in the Area of the Rule of Law between the Central Political and Legal Committee of the Communist Party of China and the Administration of the President of Belarus” 《中共中央政法委员会与白俄罗斯总统办公厅法治领域合作协议》. A representative from the SPC was among the officials from Central Party and government institutions who attended the signing ceremony. Although the text of the agreement has not been made public, official commentary stated that the agreement can “help successfully carry out the BRI”, as the project’s implementation requires “all countries to strengthen the legal protection through communication in the area of the rule of law, such as through mutual judicial assistance”.

On that visit, Mitskevich met with the Executive Vice President of the Supreme People’s Court of China Shen Deyong, who expressed hope that “this meeting will open a new chapter in the cooperation and communication between the two countries’ judiciary, and thus will improve the overall relations”; he also suggested that the two countries’ Supreme Courts engage in cooperation on a deeper level. The Belarusian representative agreed to make contributions to deepen judicial cooperation, and noted that “the Belarusian side highly values its relations with China”.

After the meeting in November 2016, interactions involving the judiciary of the two countries increased. Several Chinese judicial delegations visited Belarus. In June 2017, a delegation from the Shanghai courts visited the Belarus Supreme Court and the Belarus Constitutional Court, and discussed the use of new technology in courts (such as the development in Belarus of the national courts online database with archived info on legal proceedings). In December 2018, three senior judges from Gansu Province visited Belarus, where they met with justices of the Belarus Supreme Court, and several judges of the Minsk City Court. The Belarusian side shared some insights about the Belarusian judicial system, as well as about the judicial reforms’ results aimed at integrating e-justice elements into the process and making legal proceedings more time efficient. The Belarusian side expressed the interest in furthering cooperation and the exchange of legal information. In July 2018, Chief Justice of the Supreme People’s Court Justice Zhou Qiang met with Valery Mitskevich and suggested that “the two countries cooperate, promote judicial reforms, such as“intelligent courts”, provide judges with better quality training, support the idea of justice for people, etc.” Both sides agreed to “work together in the field of judicial reforms to implement the BRI”.

Since the BRI has begun, legal cooperation between China and Belarus has expanded in other ways.  In March 2017, the Center for Belarusian Legal information was opened at Shanghai’s East China Normal University and in April 2018, the Director of the Belarusian National Center for Legal Information (NCLI) (a Belarus government agency) Evgeny Kovalenko met with Gan Zangchun, a Member of the Party Group of the Ministry of Justice of China. His visit was part of a three country visit (also to Mongolia and Russia) to discuss BRI dispute resolution. Gan and signed a Cooperation Memorandum with the NCLI. Gan Zangchun noted that “the signed memorandum will assist in continuing the judicial cooperation, […] increase the level of cooperation, and provide good legal services and legal protection to the development of the BRI.” According to the summary of the memorandum obtained by this author directly from the NCLI, the sides agreed to “cooperate in the areas of 1) creating and promoting legal info resources; 2) using IT in the regulation-making process, as well as in the process of the application and assessment of legislation; 3) creating a system of bilateral exchange of legal information that would provide support in the studying and implementation of regulations by the other party; 4) organizing conferences and seminars in the areas of mutual interest of the parties. The exchange of such information may possibly be used by the sides to assess the regulations that are related to the protection of the legal interests of the investors of the other side, as well as control and assess the application of such regulations by judges. At the same time, it can also make the process of applying foreign law in the lawsuits with international elements easier for foreign judges, as there will be online legal databases with the relevant information on foreign regulations as well as the guidelines for their application.

As Belarus is a member of the New York Convention and has signed “The Treaty Between the Republic of Belarus and the People’s Republic of China on Legal Assistance in Civil and Criminal Matters”, both court judgments and arbitral awards of one party can be recognized and enforced by the other party.

The Belarus-China Judicial Cooperation Within the Framework of the BRI through the Shanghai Cooperation Organization

Since 2015, Belarus has had the status of an observer state in the Shanghai Cooperation Organisation (it is the only European SCO observer state) which makes Belarus eligible to participate in the conferences and forums organized by the SCO members. In December 2015, Belarus sent its first delegation to the Session of the Council of the Heads of Governments of the SCO member states, at which the primary theme of discussion was the role of the SCO countries in implementing BRI.[6]

The judicial cooperation of Belarus with China through the SCO began in 2018 at the 13th Conference of the Presidents of the Supreme Courts of SCO member nationas held in Beijing (which was attended by the judges of the Supreme Court of Belarus, Xi Jinping in his speech stated that the SCO and specifically the presidents of the SCO Supreme Courts are playing an important role in implementing the BRI, and should focus on creating the mechanisms that would improve the legal environment in their countries.

During the meeting of the Supreme Court judges of the SCO states in June 2019 in Sochi, Russia, attended by the Head of the Belarus Supreme Court Valentin Sukalo, SPC President Zhou Qiang stated that the SPC is willing to engage with the Supreme Courts that participated in the conference in order to improve the cooperation in the judicial sphere, and thus “make a new contribution to the BRI and their development strategies.”

Comparison of EU-Belarus & China-Belarus Judicial Cooperation

The European Union introduced in 2014 a new direction for cooperation called “Partnership for Good Governance” (“PGG”), under which the EU strived to help the EU’s six Eastern partner countries (among which is Belarus) seek to meet European standards on human rights, democracy and the rule of law. The first phase of the project took place from 2015 to 2017, and was implemented by the Council of Europe. One of the main aspects of that phase of the project was the promotion of the European human rights standards among Belarusian judges, law enforcement officials, etc.:  The project created human rights training and reference materials that were translated into Russian and widely disseminated. Also, online courses and other remote learning materials were integrated into the curricula of Belarusian State University and the Institute for Retraining and Qualification Upgrading of Judges, Prosecutors and Legal Professionals at the Belarusian State University to introduce the European system of human rights protection to Belarusian law students, judges and other legal professionals. In 2018, after the first phase of PGG ended, cooperation with Belarusian judges continued: for example, on May 30th, the Council of Europe organized a panel discussion on the right to fair trial attended by Belarusian judges, prosecutors, lawyers, etc. In April, 2018, a Round Table on “Legal Aspects of the Abolition of Death Penalty” was held for Belarusian judges from the Supreme Court, the Constitutional Court, as well as officials from the Prosecutor’s General Office, and other public bodies.Recently the European Union launched the second phase of the program, called “Partnership for Good Governance Part Two 2019-2021” and continues to engage in discussions with Belarusian judges and other legal professionals on topics such as the abolition of death penalty, the right to fair trial, corruption, etc. The nature of the EU judicial cooperation is different from that of China.

Judicial cooperation of China with Belarus focuses on matters related to the BRI and Chinese investment in Belarus, such as the Great Stone Industrial Park. access to legal information, data gathering, as well as promoting integrating e-justice elements into the judicial system, etc.

Impact of the Current Political Situation on Judicial Cooperation with China

Taking into account the current political situation in Belarus, this author expects that some changes in the dynamics of China-Belarus judicial cooperation might take place if the incumbent president leaves office.  For example, if power is transferred to Tikhanvoskaya (or to another opposition candidate), the role of the judiciary is likely to evolve to be more in line with EU principles. The popular opposition candidates promise to go back to the earlier version of the Constitution that gives greater powers to the Parliament and the judiciary, while the current Constitution that was amended in 1994 and 2004 provides for broad presidential powers, including the right to appoint the judges of the Supreme Court.

If the opposition comes to power, many Belarus citizens expect that Belarus will seek to build more balanced and transparent relations with both the EU and China. In the view of this author, good relations with China are beneficial for Belarus in many ways, including strengthening the Belarusian economy. So this author anticipates that judicial cooperation between the two countries will continue but may evolve if the new leaders reassess the role of Belarus under the BRI.

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Safia Yablonskaia is from Belarus and studies law at Fudan University.