How China’s non-guiding cases guide

Screen Shot 2016-07-30 at 12.13.38 PM  What few recognize is that the millions of non-guiding cases on the Supreme People’s Court’s China Judgments Online website (and its commercial counterparts, such as 无讼(and any internal version that there may be)) are guiding the development of Chinese law, including what arguments lawyers make and how judges decide cases.  I note that this coming week’s U.S.-China Judicial Dialogue: In Support of Economic Growth and Reform includes the role of precedent as one of the topics of discussion, and I hope this brief blogpost (to be expanded later) can indirectly contribute to the discussion.

The conventional wisdom among both foreigners and Chinese writing about China and case law is that with the exception of a small number of guiding cases approved by the SPC, previous cases do not make law.

Those closer to the world of practice in China know that previous cases, or some portion of them, are indirectly shaping the development of Chinese law. From a Chinese perspective these cases are not directly guiding, or binding, but provide cases that lawyers and judges use as reference (参考), to persuade a judge or other decision-maker that a previous case has decided the same or similar issues. This phenomenon relates to cases in a broad range of issues and occurs in several ways:

  • A significant number of Chinese judges and lawyers follow Wechat legal public accounts. One type of article that frequently appears is one focusing on a specific legal issue and uses the case database to generate relevant cases.  A typical example is this article published on 29 July, analyzing six cases relating to changing the name of a child.  This type of article affects arguments lawyers make and the judges consider.
  • A second way is judges themselves will search a particular issue to see how other courts have decided a particular issue or the elements to which they have looked when deciding a particular issue. Lawyers perform similar analysis when preparing to argue a case.
  • Additionally, lawyers sometimes submit a relevant court decision when making a submission in an administrative proceeding, such as to the Trademark Review and Adjudication Board and more often, when making submissions to court.  Lawyers will evaluate, however, whether the judges hearing the case will take the submission positively or will consider it an indirect criticism of their professional competency. Lawyers will submit cases from courts higher than the court that they are litigating–so that a lawyer litigating in a Beijing district court may attach a relevant case decided by the Beijing Higher People’s Court, for example.
  • Among the many sources of information SPC judges use when drafting judicial interpretations is searches of previous judgments relevant to the issues under consideration, because those will indicate which questions are unclear for the lower courts.
  • Legal services companies, such as Itslaw, are training young lawyers in case searching and retrieval (guiding and non-guiding cases), using keywords analogous to Westlaw’s and LexisNexis’ products. They are doing this training because prior cases are being used in advocacy in China.

How are cases from China Judgments Online being used in China in practice? This is where we can see how case law, Chinese style, is developing. The SPC has been focusing its efforts on its guiding cases and it is unclear whether they have noticed this.

 

 

 

 

 

 

 

How the Supreme People’s Court guides the lower courts through cases in its publications (1)

IMG_6372The Supreme People’s Court (SPC) guides the lower courts in many ways.  One way is by publishing “trial guides”(审判指导丛书) and other related specialized publications.  I have recently spoken about the cases in some of these publications.  The cases published in these trial guides are for the most part not “guiding cases” (指导性案例) and therefore may not be cited in a court judgment.  However, because they have been specially selected by the SPC, they are quite persuasive to the lower courts and therefore important to legal professionals.  The SPC sees them as a supplement to legislation, judicial interpretations, various types of judicial normative documents/judicial documents/(司法规范性文件/司法文件) and useful in providing a source for judicial interpretation drafting. I have called these cases ”stealth” guidance or “soft precedents”, as they are used without citation in judgments. This blogpost introduces cases found in several of these trial guides.

The series Reference to Criminal Trial (刑事审判参考), edited by a team from the five SPC criminal divisions is invaluable to anyone wanting a detailed understanding of the issues in the criminal justice system, as seen by insiders (and approved for general distribution).

As can be seen from the photo from a recent issue, the first section is a collection of guidance cases (指导案例). These are not guiding cases as approved by the SPC judicial committee and translated by the Stanford Project. These are cases selected by the editors. Issue #115 has a number of cases related to the crime of organizing, providing premises, and introducing prostitution. Several others discuss whether the death penalty should be applied in the circumstances described.  As the editors describe them: “these are typical cases selected for their research value in the determination of facts, adoption & application of evidence, law, and criminal punishment, to provide guidance & reference for those in criminal justice” “选择在认定事实,采行证据,法律适用和裁量刑罚…为了刑事司法工作人员处理类似案件提供具体指导和参考.”

Screenshot 2019-12-09 at 9.54.08 PMAnother specialized publication is the Guide to Foreign-Related Commercial and Maritime Trial, edited by the #4 Civil Division. As can be seen from the photos (and discussed in an earlier blogpost, some of the cases in the issue are entitled replies (some  called 答复 and others entitled 复函), while others are called cases (案例).  As mentioned in that earlier blogpost, the replies are from the SPC to a request from instructions (请示) from provincial-level courts (including the higher courts of Beijing, Shanghai, Tianjin, and Chongqing), as required by the SPC’s Prior Reporting system for cross-border arbitration matters (for example, as when a lower court intends to refuse the enforcement of a foreign arbitral award).  The #4 Civil Division publishes both the request for instructions as well as their response, while the SPC Administrative Division (in their publication Administrative Law Enforcement and Administrative Adjudication (行政执法与行政审判) (pictured below) only publishes their responses to the lower courts.

admin litigation publication

The cases published in these publications are ones that the editors consider significant. The editors of the Guide to Foreign-related Commercial and Maritime Trial describe the cases as providing powerful guidance”– “cases provide methods of thought for resolving similar issues” (具有较强的指导意义”“为了…遇到类似问题提供了解决思路”).  The editors of Administrative Law Enforcement and Administrative Adjudication describe their selected cases as being typical and guiding significance (具有典型和指导意义的审判案例. Lower court judges take the cases in these publications as providing very useful reference materials when they are presented with similar issues.  It is part of a larger effort by the SPC to use prior cases to guide the lower courts in applying their discretion.

 

 

Which Chinese cases are most persuasive?

23885878-1_x_2Chinese courts are paying more attention to the use of precedent in considering how to decide cases.  (Two of my fellow bloggers, Mark Cohen and Jeremy Daum, have recently published on this issue, as have I.)  One of the many issues remaining to be settled as China constructs its own case law system is a hierarchy of precedent, so that the Chinese legal community, in particular its overworked judges, have clear rules on this issue.  (This is one of the questions subsumed under #23 of the Fourth Five Year Court Reform Plan).

We know that the hierarchy of precedent is not settled because two recent authoritative Chinese publications take a similar but not identical approach:

  •   The first, as cited in an article by Judges Jiang Huiling and Yang Yi of the Supreme People’s Court Center for Applied Jurisprudence, highlight the list set out in “The Beijing IP Court Guiding Case Work Implementation Methods (Draft)” (summarized in Jeremy Daum’s article); and
  • The second, an article by Judge Wang Jing, a senior Nanjing Intermediate People’s Court judge, published (and re-published) in a number of prestigious Wechat public accounts, including the account of the Shandong Higher People’s Court.  (Wang Jing has frequently published in SPC publications and she published her views on the judicial quota system (on Judge He Fan’s public account).

(As helpfully translated in Jeremy Daum’s article, the Beijing IP court draft regulations list, from most to least persuasive:

  1. SPC guiding cases
  2. SPC annual cases
  3. other SPC cases
  4. High People’s Court model cases
  5. High People’s Court reference cases
  6. Other prior cases from High People’s Courts
  7. Intermediate People’s Court precedent,
  8. Basic-level Court precedent,
  9. Foreign (non-mainland) case precedent.

I’ll focus on Judge Wang Jing’s analysis.

Judge Wang Jing

1.SPC guiding cases

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2.Cases published in the monthly SPC Gazette.  Those are of two types: selected judgments (裁判文书选登) and cases  (案例), generally totalling 20-30.  The first type are cases decided by various trial divisions of the SPC and reflect their views on certain issues, while the second model cases submitted by the local courts (through the provincial high courts), which have been reviewed by the various trial divisions of the SPC.

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3.Other cases published by journals of the SPC such as Selection of People’s Court Cases(人民法院案例选),  (a quarterly publication of the SPC Center for Applied Jurisprudence), China Case Trial Highlights (中国审判案例要览) (an annual publication of the National Judicial College and the Law School of People’s University)、and People’s Justice–Cases (People’s Justice is a biweekly publication,but the Cases section is published monthly). She notes that these cases reflect issues considered difficult and disputed in practice.z4573143

 

4. Trial Guides edited and written by the trial divisions of the SPC (最高法院各审判业务庭编写的审判指导丛书).  The People’s Court Press publishes a series entitled China Trial Guide (审判指导丛书), with separate publications by various trial divisions of the SPC, including the case filing, civil, administrative, #2 civil and #4 civil divisions. These publications often contain cases from the lower courts, or in the case of the #4 civil division, cases that have been reported to that division for review under the Prior Reporting system.

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5. Case publications by various higher people’s courts (各地高级法院等编辑的案例刊物).

She notes that many provincial higher people’s courts (and some intermediate courts) publish cases, with cases published by the ones that have been in operation the longest and are more influential considered the more persuasive.  She mentions the Jiangsu Higher People’s Court Gazette as an example, which has cases decided by that court and model/typical cases from the lower courts.  (These are similar to categories 4-6 above).

Although her list does not specifically mention non-guiding (and non-model or typical cases) in her list of authoritative sources, she addresses them in her advice for lawyers providing precedent cases in litigation, with three common sense items of advice: when  you provide a case, it should be according to the court hierarchy, and date issued, provide the source, and use cases to provide a mind map for the judge to follow.  (A prestigious intermediate people’s court (the Shenzhen Intermediate People’s Court) recently also mentioned litigants (positively) using cases from the SPC’s case database, China Judgements Online, as a reference to judges.)

Some comments

This is another area in which Chinese law appears to lack firm guidelines about order and terminology (as I wrote about this theme in a series of articles for Practical Law China, ( note that they are behind the company paywall).The SPC and its divisions (and even one of its Circuit Courts) issue collections of model/typical cases (and summaries of such cases) under a variety of titles.  Terminology (aside from the guiding cases) is not entirely consistent.   The SPC issues notices and replies (generally of divisions of the SPC), acknowledged by Vice President Shen Deyong as a source of law, in an introduction to the book Collection of the Supreme People’s Court’s Judicial Rules (2nd edition)–how do these relate as sources of law vis a vis various types of cases or case summaries?  The legal community (domestic and foreign) awaits greater guidance.

 

 

 

More on the Supreme People’s Court and Typical Cases

SPC announces model cases

SPC announces model cases

In a press conference on 30 April, the Supreme People’s Court (the Court) announced that it will more systematically use model (typical) cases (典型案例) to guide the lower courts. The Court is increasingly using model/typical cases.  My recent blogpost  explains what model cases are, which courts issue them and the authority of model cases.

One of the initiatives the Court highlighted in its October 2013 judicial reform plan is “expanding fully the important role of leading cases and cases for reference.” because its leadership considers model cases an important supplement to legislation, judicial interpretations, and “guiding cases” (a special category of cases so designated by the Court).  Mark Cohen, of chinaipr.com, has blogged on the Court’s use of model cases in the area of intellectual property law.

The Court will issue at least five model/typical cases on a monthly basis, selected from cases submitted by the lower courts.  The cases can be accessed through the Court’s Cases in Chinese Courts portal. The ones on the website are currently limited to those issued in 2013 and 2014.  Unfortunately, a search functions appears lacking.  Despite the limitations, it is a further development in the use of case law “with Chinese characteristics.”

 

Supreme People’s Court Establishes a Mechanism for Resolving Inconsistent Decisions

 

Screenshot 2020-01-17 at 12.11.48 PM

On 11 October, the Supreme People’s Court (SPC)  issued brief guidance establishing a mechanism for resolving its inconsistent decisions, entitled “Implementing Measures on Establishing a Mechanism for Resolving Differences in the Application of Law (Implementing Measures) (关于建立法律适用分歧解决机制的实施办法).  The guidance did not appear in Chinese legal media until the end of October. The intent of the guidance is to create a mechanism to resolve the old problem of inconsistent court decisions concerning the same issue (same cases decided differently 同案不同判) made by Chinese courts and even within the SPC. Widespread use of the SPC’s judgments database has brought this phenomenon to greater public attention.  With the explosion in the number of cases in the Chinese courts and in the SPC in particular in recent years, the issue of divergent views within the SPC on the same issue is likely to be occurring even more frequently.  The concern about uniformity or consistency of judicial decisions has its roots in the traditional Chinese legal system and is an ongoing topic of discussion among Chinese judges, legal practitioners, legal academics, and law students.

For those with an interest in the details of how the SPC operates, this document does not have the status of a judicial interpretation but the SPC’s judicial committee has approved it, as is evident from the title of the document (measures/办法 and the document number 法发〔2019〕23号 (Fa Fa (2019) #23.  Judicial interpretations must have one of four titles and have a document number with  Fa Shi 法释.  The reason that the SPC judicial committee approved it is linked to Article 7 of the recently released guidance on judicial committees: “the adjudication [judicial] committee of the Supreme People’s Court is to unify law through means such as adopting and drafting judicial interpretations and normative documents (规范性文件), and publishing guiding cases.”

This mechanism has its antecedents in several previous judicial reform documents, and is one that is contained reform measure #23 of the last round of judicial reforms and reform measure #26 of the current round::

#23….Complete and improve working mechanisms for the uniform application of law.

#26 Improve mechanisms for the uniform application of law. Strengthen and regulate work on judicial interpretations, complete mechanisms for researching, initiating, drafting, debating, reviewing, publishing, cleaning up, and canceling judicial interpretations, to improve centralized management and report review mechanisms. Improve the guiding cases system, complete mechanisms for reporting, selecting, publishing, assessing, and applying cases. Establish mechanisms for high people’s courts filing for the record trial guidance documents and reference cases. Complete mechanisms for connecting the work of case discussion by presiding judges and collegial panel deliberations, the compensation commission, and the judicial committee. Improve working mechanisms for mandatory searches and reporting of analogous cases and new types of case. (完善统一法律适用机制。 加强和规范司法解释工作,健全司法解释的调研、立项、起草、论证、审核、发布、清理和废止机制,完善归口管理和报备审查机制。完善指导性案例制度,健全案例报送、筛选、发布、评估和应用机制。建立高级人民法院审判指导文件和参考性案例的备案机制。健全主审法官会议与合议庭评议、赔偿委员会、审判委员会讨论案件的工作衔接机制。完善类案和新类型案件强制检索报告工作机制)

A brief summary of the mechanism is set out, followed by my preliminary thoughts on the mechanism and related issues.

The mechanism

The Implementing Measures, which went into effect on 28 October,  provide that if certain SPC entities or lower courts discover that the SPC has issued valid judgments (判决) or rulings (裁定) (the Chinese term is “生效裁判”) which apply the law differently (存在法律适用分歧), or an ongoing case may result in the later decision applying the law differently from that in a previous SPC case, the matter should be brought to the attention of the SPC judicial committee through an application process managed by the Trial Management Office.

Article 1 of the Implementing Measures designates the SPC judicial committee (also translated as adjudication committee 审判委员会) as the institution to resolve and guide differences in the application of law.

Article 2 authorize  operational divisions of the SPC (业务部门), the higher people’s courts and specialized people’s courts to submit an application to the SPC’s Trial Management Office which may be eventually considered by the SPC’s judicial committee if either:

  1. there is a discrepancy in the application of law of judicial decisions of the SPC that are already effective (最高人民法院生效裁判之间存在法律适用分歧的);
  2. or there is a difference in the application of law between the conclusions in a case being tried and principles or standards on the application of law already determined in effective decisions of the SPC  (在审案件作出的裁判结果可能与最高人民法院生效裁判确定的法律适用原则或者标准存在分歧的).

Article 3 authorizes the China Institute of Applied Jurisprudence  (CIAJ) to submit an application to the Trial Management Office if it encounters differences in the application of law in effective judgments of the SPC that it encounters during its focused research work on like cases decided consistently (类案同判专项研究).

If the Trial Management Office determines the matter should be accepted (project initiation) (立项), that office is required to refer the matter to the CIAJ, which is required to provide an initial view to the Trial Management Office within five working days.  Presumably, they will do little additional research and will focus on reviewing the materials submitted by the entity involved.  In some situations, it appears to put CIAJ in the odd position of reviewing its own work.  The Trial Management Office forwards the initial view of the CIAJ to the SPC operational division involved for further review and response.  The operational division involved may involve experts in needed. The operational division should draft a response (复审意见) in a timely manner to the Trial Management Office, which should submit a request to an SPC leader (presumably the relevant SPC vice president) to place the matter on the judicial committee agenda.  Once the judicial committee makes a decision, the entity that applied for a determination is to be informed.  The Trial Management Office is required to provide a proposal containing the form and scope of the decision by the judicial committee for approval (提出发布形式与发布范围意见).  It can be anticipated that determinations on non-sensitive topics may be made public, while those on more sensitive topics will be distributed either solely within the court system or to a relevant category of judges. Article 11 of the Implementing Measures requires SPC operational divisions, local courts, and specialized courts to make reference and implement (参照执行) the SPC judicial committee’s decision in the course of their work. Presumably that will depend on how widely distributed the determination is.

Some preliminary thoughts

In my view, the mechanism is a microcosm of themes reflecting how the SPC operates.  As mentioned above, the SPC decides (either through judgments or rulings) large numbers of cases yearly, and the SPC responds to an unknown number of requests for instructions (请示), mostly on legal issues, which means that in practice that issues on the same body of law may be determined by different divisions of the SPC or different teams of SPC judges. So differences in legal issues may arise either through litigation or court administrative-type procedures. While SPC judges in practice (as I understand it) search for similar cases, it is inevitable that different people have different views on legal issues.  Unlike some other legal systems, the SPC has not evolved an en banc or enlarged panel of judges (this description of how France’s highest court operates provides a good example) as the final institution for resolving these issues.  Designating the SPC’s judicial committee reflects the traditional administrative way (官本位) that SPC makes major decisions concerning legal issues.  As I described in a recent blogpost, the members of the SPC’s judicial committee are its senior leaders.

I surmise that many of the differences in views will be resolved before the matters reach the judicial committee.  In comments made on the Implementing Measures, Justice He Xiaorong (head of the #2 Circuit Court) mentions that he has inaugurated a system of enlarged panels of judges that include those with a public law and private law background, and familiar with civil, criminal, and administrative law, to consider cases involving difficult issues. That system will reduce somewhat the pipeline of issues possibly entering this mechanism.  For those issues that enter the mechanism, it is possible that opposing views may be harmonized when the operational division of the SPC needs to respond to the points summarized by the CIAJ.  I predict that relatively few questions will go to the SPC judicial committee itself.  The mechanism may have been designed with that goal in mind or may have that impact.

Additionally, from my reading of the Implementing Measures, the drafting could have benefited from more input from greater input either within the SPC or without, which could have avoided some of the problems I point out below. I surmise that the drafters were so used to the terminology used within the SPC, they did not realize that lack of clarity will confuse the lower courts and the greater legal community, for whom this system may have practical implications. In particular, the Implementing Measures:

  1.  do not define what is meant by differences in the application of law (法律适用分歧).  Presumably, a major difference in the application of law is intended and the SPC judicial committee (and its gatekeeper, which appears to be the Trial Management Office) will consider carefully which inconsistencies merit a determination by the judicial committee. My understanding is that the judicial committee is reluctant to reverse its determinations on particular legal issues within a short time, as it seeks to provide legal certainty on particular issues through judicial interpretations and other documents.  As I described in my 2019 article on the SPC and FTZs, rules or policies included in SPC judicial policy documents may eventually be crystallized in SPC judicial interpretations and eventually codified in national law, but that process is slow and cannot meet the needs of the lower courts, which need to deal properly (politically and legally) with outstanding legal issues pending a more permanent stabilization.
  2. do not define the term “裁判,” which generally refers to judgments (判决) and rulings (裁定). To a casual reader, at least, it is not clear whether it is intended to include responses to requests for instructions (requests for advisory opinions, 请示).  As I wrote in a blogpost earlier this year, some responses to requests for instructions are entitled fuhan 复函 and others dafu 答复. The editors (from the SPC) of a two-volume collection of responses described them as ‘usually called quasi-judicial interpretation documents’ (往往被称为准司法解释性文件) and ‘a necessary supplement to judicial interpretations’ (它是对司法解释一种必须的补充).  It is not unusual for these responses to conflict with one another, as reasonable people can disagree and multiple institutions within the SPC issue responses on the same or related bodies of law.  I have not noticed a document (at least one that was made public–I’d be grateful to be informed otherwise) describing an existing mechanism requiring the drafters of these responses to review related responses issued by other divisions. Differences in the application of law could also arise between an existing response and later judgment, or draft judgment.
  3. do not define what is meant by “业务部门” (operational departments/divisions).  Does it include the SPC’s Research Office (which one knowledgeable person described as a comprehensive operational department (综合业务部门)), which often issues responses to requests for instructions?
  4. are very weak on specific procedures for when a question of law should be referred to this mechanism.  Consider, for example, a case that is being considered by one of the divisions of the SPC.  2017 SPC regulations on the SPC’s responsibility system mention professional  (presiding) judges meetings (as discussed in a 2017 blogpost and again several times this year.  The Implementing Measures do not specify whether the issue should be reviewed by the division’s professional judges meeting before it is submitted to the Trial Management Office. Presumably that will be the case, as the judicial committee guidance requires it. In Justice He Xiaorong, clarifies that the professional judges meeting is an important institution for resolving differences in the application of law.   As a practical matter, will this procedure suspend civil litigation procedures?  It is unclear.
  5. do not clarify what will be included in the package of documents that goes to the Trial Management Office. Will it be similar to the documents that go to the judicial committee under its new guidance on judicial committees? It appears that the Implementing Measures are not well integrated with the new guidance on judicial committees.   I surmise (please message me if I am mistaken) that the drafting of the Implementing Measures and the guidance on judicial committees was siloed, a frequent problem in the Chinese and other bureaucracies, so that the drafters of the Implementing Measures were unaware of the details of the new judicial committee guidance. As I wrote last month, those contain more specific requirements concerning the content of the report that the judges are required to prepare for the judicial committee, including arguments by both/all parties, prosecution/defense counsel and a clear listing of the issues on the application of law that require discussion and decision by the adjudication committee, the opinions of the professional (presiding) judges meeting.  The guidance also requires judges preparing these reports to search for similar or related cases. I surmise that these requirements will be consolidated in practice.
  6. give special authority to the CIAJ in the course of its research work on like cases. It is also possible that CIAJ could encounter major inconsistencies in its other work, such as compiling its Selection of People’s Court Cases (mentioned in my 2017 Tsinghua China Law Review article). Moreover, it is curious that the CIAJ is given this special authority but not an analogous institution in the National Judges College. Article 3 authorizes the CIAJ to submit an application relating to differences in the application discovered in the course of its work, while the Judicial Case Academy of the SPC (under the National Judges College) (see a list of its 2018-2019 research projects) has no such authority, giving the careful reader the impression that the CIAJ led the drafting of the Implementing Measures.  It appears to be a version of a phenomenon I described in a draft article, that because the SPC is a large organization, with many entities competing for top leadership attention, policy documents are sometimes drafted with  consideration of institutional interests, as a policy document approved by the SPC judicial committee can be seen as representing an undertaking by SPC leadership to the institutional goals of division or entity involved.

China’s new judicial reforms on case law & other guidance

Gazette of the Jiangsu Higher People’s Court

As mentioned in my earlier blogpost, the Supreme People’s Court issued the fifth judicial reform plan outline in February, of this year (2019), harmonized with the current focus on Party leadership. For people with the fortitude to decode Chinese official documents, some real content can be found in the document. One of those provisions is #26 and relates to the ongoing efforts of the SPC to implement greater uniformity and consistency in the way that the law is applied in the courts (the translation below is from Chinalawtranslate.com):

#26 Improve mechanisms for the uniform application of law. Strengthen and regulate work on judicial interpretations, complete mechanisms for researching, initiating, drafting, debating, reviewing, publishing, cleaning up, and canceling judicial interpretations, to improve centralized management and report review mechanisms. Improve the guiding cases system, complete mechanisms for reporting, selecting, publishing, assessing, and applying cases. Establish mechanisms for high people’s courts filing for the record trial guidance documents and reference cases. Complete mechanisms for connecting the work of case discussion by presiding judges and collegial panel deliberations, the compensation commission, and the judicial committee. Improve working mechanisms for mandatory searches and reporting of analogous cases and new types of case. (完善统一法律适用机制。 加强和规范司法解释工作,健全司法解释的调研、立项、起草、论证、审核、发布、清理和废止机制,完善归口管理和报备审查机制。完善指导性案例制度,健全案例报送、筛选、发布、评估和应用机制。建立高级人民法院审判指导文件和参考性案例的备案机制。健全主审法官会议与合议庭评议、赔偿委员会、审判委员会讨论案件的工作衔接机制。完善类案和新类型案件强制检索报告工作机制)

As for why the uniform application of law is an issue, the quick explanation is the drafting of Chinese legislation often leaves important issues unresolved and outsources to the SPC (and SPP for some issues) the hard job of drafting more detailed provisions. (see Chinalawtranslate.com for many examples and NPC_observer.com for insights about the legislative drafting process).  Comments about the role of case law are found below.

#26 mentions the following:

  • improving judicial interpretations;
  • improving the guiding case system;
  • establishing a system for higher people’s courts to record with the SPC their guiding-type documents and reference cases;
  • improving China’s case law system.

Judicial interpretations

The SPC regulations on judicial interpretation work date from 2007. Some later guidance on that topic was issued several years ago, but that guidance has not been made broadly available. So it appears that one signal that this provision is sending is that the 2007 regulations need to be updated. It appears likely that the SPC will harmonize the language in its rules with the 2015 Legislation Law. Other provisions are unclear. One guess (based on the SPC document on incorporating socialist core values into judicial interpretations) is that language about socialist core values will be incorporated into any amended rules on judicial interpretation work. The Supreme People’s Procuratorate (SPP) revised its rules on judicial interpretation work earlier this year, and it is possible that the SPC will harmonize some of the language in its rules with those of the SPP.

Another guess is that those rules will codify existing practices on drafting, discussions, etc.. As my blogpost (and recently published article) on the SPC’s Pilot Free Trade Zone Opinion details, the drafting process for judicial interpretations (and similar types of guidance) operates on the basis of long-standing practices. (My forthcoming article stuck in the academic publishing process has many more details on the drafting process for criminal procedure law interpretations).

This provision appears to be aimed at the SPC’s Research Office, which takes the lead in managing the judicial interpretation process and deals with ongoing criticism that the SPC allows inconsistent judicial interpretations to be issued. It is unclear whether the improvements mentioned will involve more public consultation than previously.

Guiding cases

I will leave detailed comments on how the guiding case system will be improved to others, as research by others (see Jeremy Daum’s article) tends to show that guiding cases are rarely cited. I surmise that the intent of the provision is to speed up the selection and approval process for guiding cases, as well as the use rate.

Local High Court Guidance

This language codifies the long-standing practice of local high courts issuing guiding rules applicable within their jurisdictions. As discussed in my article on judicial transparency, published earlier this year, senior legal scholar Li Buyun raised questions about the validity of local court guidance in his letter to the Legislative Affairs Commission of the National People’s Congress last year (2018). Article 104 of the Legislation Law forbids adjudication and procuratorate organs other than the
Supreme People’s Court and the Supreme People’s Procuratorate from making specific interpretations on the application of law. 2010 SPC guidance had normalized the long-term practice of higher people’s courts (and their equivalent in the specialized courts) in issuing documents, characterized as ‘”trial work documents” (审判业务文件) and issuing reference-type cases (参考性案例).

Evidence of the importance of the practice can be seen by the fact that leading law firms publish client alerts about important local court guidance. This provision calls for a filing for the record system (with the SPC) of higher court guidance and reference cases to be established. It is not clear whether this system (apparently intended to enable the SPC to monitor local guidance and reference cases better) will result in a system that provides greater transparency to these rules. I had noted varying transparency requirements for local court guidance in my article. The Gazette of the Jiangsu Higher People’s Court (pictured above) publishes its court guidance under the section “judicial documents” (司法文件). That Gazette also includes local reference cases, entitled reference cases (参考案例)。 Terminology for local reference cases is not consistent, with the Shanghai Higher People’s Court issuing cases with a referential nature (参考性案例).

Improving China’s Case Law System

I wrote about in greater length in this short academic article published in the Tsinghua China Law Review two years ago (and in this blogpost three years ago) on how non-guiding cases guide. This part of the #26 consolidates some of the provisions of previous judicial reform documents and signals that the SPC’s judicial reform office is focusing on how to provide better guidance to the lower courts on using non-guiding cases and other forms of guidance documents that are not judicial interpretations. One issue not specifically mentioned is the relative authority of guidance documents and judgments/rulings by courts. It is assumed that SPC decisions are more authoritative than lower court ones.

The first sentence addresses the use of other forms of case guidance and transforming this case guidance into written documents. The titles, authority, etc. of these guidance documents are likely to be settled over time. One type that I have observed is the specialized judges conference (专业法官会议)(mentioned in at least two 2017 SPC documents: Opinions on Putting a Judicial Responsibility System in Place and Improving Mechanisms for Trial Oversight and Management ;(Provisional) and the SPC’s Judicial Responsibility implementing opinion (最高人民法院司法责任制实施意见(试行)(Implementing Opinion), In these conferences, difficult issues are discussed and provided to the collegial panel involved, but the panel members are not bound by the views of the conferences. This academic study notes that it is a uniquely Chinese institution and has arisen because of judicial caution about deciding cases independently (可以说,专业法官会议是中国特色的法院内部向办案法官提供咨询意见的专门机构,是在走向审判独立的特殊过程中,对法官自由办案能力担心而产生的一种特殊组织), likely in the face of extensive and long term accountability for decisions.

Some portion of SPC specialized judges conference discussions has been consolidated in the form of documents, such as in the form of a conference/meeting summary (会议纪要).  The SPC’s #2 Civil Division (focusing on commercial issues) seems to be leading the way in publishing these meeting summaries–some of the summaries have been published in book form, also with updates published on the internet/Wechat–see this example.

The last sentence of #26 addresses the case law system. The increasing importance of non-guiding cases shows the strength of the case law system that the authorities rejected about 10 years ago. It is clear from Justice Hu Yunteng(currently president of the National Judicial College)’s recollections of the history of the case system with Chinese characteristics, that Judge Jiang Huiling, then his colleague at the China Institute for Applied Jurisprudence (and currently vice president of the National Judges College) had looked to jurisdictions outside of China to advocate that China establish a case law system (Justice Hu doesn’t specify whether Judge Jiang was looking to case law systems in civil or common law jurisdictions in the “West.”). Mark Jia (of Harvard Law School), in his 2016 article, cites Li Shichun of the Chinese Academy of Social Sciences to the effect that it was the NPC that opposed those seeking to establish a Chinese case law precedential system.
My understanding that the last sentence is intended requires judges handling a case to engage in similar case searches and to report on the results of those searches in certain circumstances (for example, to report on their search before the case is discussed in the specialized judges conference). My earlier blogpost discusses the 2018 document requiring prior case search.–the specific rules for prior case search are not yet in place. What should be searched is not entirely clear.  One knowledgeable person described prior case search as a tool for “catching valuable cases in the sea of cases.” My own understanding is that it will depend on the area of law.  It can be seen from the last blogpost the type of cases considered authoritive in criminal law, but the types of persuasive cases will differ in other areas of law. Prior case search is meant as a tool for the courts to apply the law more consistently (and consistent with the views of the SPC) (an ongoing goal of the SPC). It is also likely that new legal rules evolved in cases will eventually be crystalized in other forms of documentary guidance, be it local court guidance, an SPC policy document, or an SPC judicial interpretation.

On the topic of precedent, as I noted in my 2017 blogpost on the SPC’s implementing opinion on its judicial responsibility system, special approval within the SPC is required if a ruling in a case will be inconsistent with prior SPC rulings on the issue. It means that the SPC is seeking to improve the consistency of its judgments internally.

So it appears that we will be seeing further evolution over the next few years in the tools used by the Chinese courts to provide legal rules: judicial interpretations, guiding cases, local high court guidance and reference cases, other guiding documents, and prior cases, with many of these intended to strengthen the firm guiding hand of the SPC.

 

Practitioners’ Guide to China’s Criminal Law

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Criminal Law Treatise

This newly published volume 刑法注释书(Criminal Law Treatise), the first volume in a series of treatises for practitioners, is critical for understanding how Chinese judges and other practitioners approach China’s Criminal Law.  This reference work was edited by He Fan, head of the planning section of the Supreme People’s Court Judicial Reform Office.  He has a PhD in criminal law.  Earlier in his career was a policeman and a criminal court judge, so he has insights from the world of practice about what judges and others who need to understand the law on a particular crime correctly (正确). The idea from the volume arose from a project that he did with the Shanghai Higher People’s Court. And He Fan notes in his article introducing the book that the organizing principle for this book is influenced by a volume on Criminal Law edited by Hsu Yu-hsiu, former grand justice on Taiwan’s Constitutional Court and a handbook on search and seizure by Taiwan National University Professor Lin Yu-Hsiung. Both books draw on the approach of traditional Chinese criminal law books of setting out the statute provisions with annotations (注释).

The book assembles in a single deceptively small volume the principal sources of law and guidance that those involved in the criminal justice system in China need to access.

The organizing principle for the book is as follows:

  1. legislation–article of the law and any prior versions of the article, with any explanation (说明), including explanations of the amendment (立法-要点注释);
  2. Related legislation (相关立法);
  3. legislative interpretations (立法解释); (these are binding and have a higher status than judicial interpretations);
  4. Legislative opinions of an interpretive nature (立法解释性意见)–responses by the Legislative Affairs Commission (and its Criminal Law Office) on issues of criminal law.  These do not have a formal status under Chinese law, but are authoritative guidance. (Thank you to Changhao Wei, NPC Observer, for this comments on this) ;
  5. judicial interpretations (司法解释) (these can be by the SPC, the Supreme People’s Procuratorate (SPP), or the two together. These have a formal legal status under Chinese law and the SPC and SPP have declared that they have the status of law;
  6. judicial guiding documents (司法指导文件)–these are documents providing guidance on criminal law issues from the Central Political-Legal Commission, the SPC and its Research Office, various criminal divisions, SPP and its Policy and Research Office, and other related documents (as mentioned in the previous blogpost, these types of documents lack a formal status, but are highly authoritative);
  7. judicial interpretations–annotations司法解释-注释 and judicial guiding documents–annotations 司法指导性文件-注释–these are related “understanding and application” documents (相关文件理解与适用) authoritative explanations by the drafters of judicial interpretations and judicial guiding documents (previous blogposts have drawn on these “understanding and application documents”);
  8. If multiple judicial interpretations have been issued on an issue, annotations to each;
  9. Guiding cases–courts 指导性案例-法院 (translations available at the China Guiding Cases Project);
  10. Guiding cases–procuratorate指导性案例-检察 (translations of many available at Chinalawtranslate.com);
  11. SPC bulletin cases 法院公报案例 (I have written about the hierarchy various types of SPC approved cases in my Tsinghua China Law Review article);
  12. Court reference cases 法院参考案例 (these refer to the cases in Reference to Criminal Trial, the publication of the five criminal divisions of the SPC), also mentioned in my article and a January, 2018 blogpost;
  13. public security documents ( 公安文件)–documents of the Ministry of Public Security (MPS), the MPS legal affairs bureau, the economic crime investigation bureau and other related guidance documents).

“See inside this book”

 

What significance does China’s updated court law have?

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main premises of the Shenzhen intermediate court

The National People’s Congress (NPC) Standing Committee recently revised the Organic Law of the People’s Courts (People’s Courts Law, English translation available at Chinalawtranslate.com), the framework law by which the Chinese courts operate.  The NPC took the lead in drafting it, rather than the Supreme People’s Court (SPC). It retains the framework of the old law, incorporates legislative changes and many judicial reforms, leaves some flexibility for future reforms, and updates some of the general principles in the old law that apparently are on the dust heap of history (历史的垃圾堆).  Some of the principles newly incorporated reflect the reorientation of the Chinese courts, over the past 40 years while others represent long-term goals. Some provisions originally in earlier drafts have been deleted because the NPC Constitution and Law Committee considered that the time was not ripe for incorporating them.

The law contains some oddities, such as using two terms for judges, both “审判员” (shenpanyuan) (used four times) and “法官” (faguan)(used 38 times).  None of the official commentary has explained the reason for the mixed terminology.  My own guess is that it is linked to the use of “审判员” in the Constitution, but anyone with more insights into this is welcome to provide clarity.

The People’s Courts Law does not stand on its own. It is connected with other legislation, such as the Judges’ Law (amendments under consideration, with the drafting led by the SPC (this 2017 article criticizes some of the disconnects between the two) .the three procedure laws, the Civil Servants Law, as well as with Communist Party (Party) regulations.  As the courts are led by the Party,  its regulations also affect how the amended People’s Courts Law will operate when it becomes effective on 1 January 2019.

General Provisions

Some of the principles newly incorporated into the law reflect the reorientation of the Chinese courts over the past 40 years towards more civil disputes and an increasing number of administrative disputes, while others represent long-term goals.

Article 2 has relegated some of the dated language from what was previously Article 3  to the dust heap of history–references to the “system of the dictatorship of the proletariat,” “socialist property,” and the “smooth progress of the socialist revolution”). Those have been replaced by language such as “ensuring the innocent are not prosecuted,” “protecting the lawful rights and interests of individuals and organizations,” preserving national security and social order, social fairness and justice,  and the uniformity, dignity, and authority of the state’s legal system.

The principle of “ensuring the innocent are not prosecuted” makes its first appearance in the People’s Courts Law. I recommend this new article by a member of the Beijing Procuratorate, (in part) criticizing the poisonous effect of the “declared innocent” performance indicators of procurators on Chinese criminal justice.

On protecting the “lawful interests of individuals and organizations,” rapidly changing judicial policy and inconsistencies between criminal and civil law may mean that what is recognized as valid under civil law may be considered a bribe under criminal law.  Additionally, although the People’s Courts Law deletes language that distinguishes among owners of different types of Chinese companies, Chinese criminal law still does (see this chart setting out sentencing guidelines, for example).

Article 6, on judicial fairness, contains language on respecting and protecting human rights.  Foreigners may think it is directed at them, but it is more likely aimed at Chinese citizens.

Article 7 calls for the courts to carry out judicial openness, except as otherwise provided by law.  It is generally recognized that the courts are much more transparent than before, although specialist analysis in and out of China points out that there remains much to be done.

Article 8 incorporates judicial responsibility systems into the law (a prominent feature of the recent judicial reforms), described by two judges as the “sword of Damocles hanging over judges” (( 法官办案责任追究是时刻悬挂在法官们头上的“达摩克利斯之剑”) and a topic regarding which more dispassionate analysis is making its way into print.

Article 11 has important language about the right of the masses (i.e. ordinary people, that term is alive and well) to know of (知情),  participate in (参与·), and supervise the courts (according to law). However, the devil is in the details, as procedures for exercising these rights remain limited and sometimes lacking.

Organization (set up and authority) of the courts

Article 15 mentions some of the specialized courts that have been established over the last thirty years:

  • Maritime courts, legislation found here; translation of SPC regulations on jurisdiction found here.
  • Intellectual property courts, legislation found here, a summary of SPC regulations on jurisdiction found here.
  • Financial courts, see the SPC’s regulations on the Shanghai financial court.
  • The military courts still lack their own legislation (an earlier discussion of this issue is found here).

Article 14 relates to the special Xinjiang Construction & Production Corps (Bingtuan) courts  (not a specialized court under Chinese law, rather a court with its own special jurisdiction). Those interested can look to its NPC Standing Committee legislation,  SPC more detailed regulations, and Professor Pittman Potter’s research on these courts.

Article 16 incorporates the new China International Commercial Court’s first instance cases.

Article 18 incorporates the guiding case system into the law.

Article 19 crystallizes the SPC’s circuit courts (tribunals) into law (SPC regulations on the jurisdiction of those courts found here).

Articles 26 and 27 give courts some flexibility on their internal structure (courts in remote areas with few cases need not establish divisions, while large city courts can have multiple specialized ones. (Earlier blogposts have mentioned establishing bankruptcy divisions, for example.) Article 27 also mentions establishing (or not) comprehensive divisions (the administrative departments of courts, that according to a recent academic article can constitute close to half the headcount in a court and that some court leaders value more highly than operational divisions (the divisions hearing cases).

Trial Organization

This section of the law incorporates the current judicial reforms in several ways, including:

  • In Article 30, on the operation of collegial panels and requiring the court president to be the presiding judge when s(he) participates in a collegial panel;
  • Mentioning in Article 31 that dissenting opinions are to be recorded and that members of the collegial panel (or sole judge) are the ones to sign their judgments and the court is to issue it;
  • Article 34 gives space for eliminating the role of people’s assessors to determine issues of law, linked to Article 22 of the People’s Assessors Law;
  • Articles 36-39 includes new provisions on judicial/adjudication committees.  It consolidates current reforms by crystalizing specialist judicial committees (civil/criminal). An important reform is requiring the views of the judicial committee to be disclosed in the judgment (the view is binding on the collegial panel that has submitted the case.  These articles also include related stipulations such as quorum requirements and making judicial committee members responsible for their views and votes. (See previous scholarship on this important institution).
  • Article 37 incorporates into law previous SPC regulations on judicial interpretations, specifying that they must be approved by the full (plenary) SPC judicial committee while guiding cases can be approved by a specialized committee of the SPC judicial committee.

Court Personnel

This section of the law uses the terminology :”审判员” (shenpanyuan) and “法官” (faguan).  It also incorporates the personnel reforms set out in the judicial reform documents in several ways: quota judge system; selecting higher court judges from the lower courts; the roles of judicial assistants and clerks (changed from the old model); other support personnel in the courts; a new career track for judges, including judicial selection committees; preference to hiring judges with legal qualifications;

Article 47 requires court presidents to have legal knowledge and experience.  It has long been an issue that court presidents have been appointed more for their political than legal expertise. Under the Chinese court system, an effective court president requires both sets of skills.

It appears that the reform of having judges below the provincial level appointed by the provincial level is not yet in place,

Safeguards for the courts’ exercise of authority

This section of the law links with the Judges Law and the People’s Police Law (in relation to judicial police).

Article 52 gives courts the right to refuse to engage in activities that violate their legally prescribed duties (will this end the phenomenon of judges sweeping streets?);

Article 53 relates to reforms relating to enforcement of judgments (and the social credit system);

Article 55 relates to judicial (and judicial personnel training, both theoretical/(ideological) and professional)–some earlier blogposts have shed light on this topic.

Article 56 indicates that headcount for court personnel is subject to special regulation(人民法院人员编制实行专项管理, distinct from other civil servants.

Article 58 incorporates into the law President Zhou Qiang’s focus on the informatization (including the use of the internet and big data) of the Chinese courts.

Drafting process

The drafting process (the explanation and other articles have the details) reflects the drafting of much Chinese legislation (further insights about the process from Jamie Horsley here).  The SPC Party Group designated personnel to research specific issues and engage with the drafters. The drafting involved several years of soft consultation by the drafters of relevant Party and government authorities, plus limited public consultations. Among the central Party authorities consulted were: Central Commission for Discipline Inspection, Central Organizational Department (in charge of cadres); Central Staffing Commission (in charge of headcount); Central Political-Legal Committee.  On the government side: Supreme People’s Court and Procuratorate; State Council Legislative Affairs Office; Ministry of Finance, National People’s Congress Legal Work Committee. Investigations and consultations were also done at a local level.

Signals in Supreme People’s Court President Zhou Qiang’s 2018 report to NPC (part 1)

Screen Shot 2018-05-10 at 12.54.58 PMFor those with the ability (or at least the patience) to decode Supreme People’s Court (SPC) President Zhou Qiang’s March, 2018 report to the National People’s Congress, it provides insights into the Chinese courts, economy, and society, and of course politics.  This blogpost will address selected aspects of the first part of the report because of competing time demands.

Report drafting

To most of the world, President Zhou Qiang’s reports to the National People’s Congress (NPC) differ little from year to year.  However to President Zhou Qiang and the team of people tasked with preparing a draft that would not be thrown back in their faces, the challenges in 2018 were more formidable than previously.  This year’s report needed to highlight the SPC’s achievements of the last five years, signal that its work in the next year is harmonized with the post-19th Party Congress New Era, and hit the right notes with NPC delegates, who have in the past voted against court reports in significant numbers.

According to this report, the drafting group, which started work in late October (after the 19th Party Congress),  and as anyone familiar with China today would expect, communicated through Wechat. The high stakes report meant that President Zhou Qiang summoned members for drafting sessions during the Chinese new year holiday. The group submitted 37 drafts to President Zhou Qiang and other senior leaders, and as this blog reported in previous years on this blog, senior court leaders traveled the country to seek the views of NPC delegates and many others.

This means (as I have written before, and I have discussed in greater detail in a forthcoming paper) that the statistics have been specially selected.

The summary below (part 1) is not comprehensive but provides some highlights.

Executive summary (SPC section)

The English language Xinhua report on Zhou Qiang report drew on the introductory section, which was an executive summary of the work of the courts in the last five years, but this section will focus on the summary of SPC’s accomplishments

The SPC heard about 82,383 cases and closed about 79,692 ones, up 60.6 percent and 58.8 percent over the previous five-year period respectively. Much of this caseload is attributable to the circuit courts. For those interested, SPC court hearings (that are being heard openly) are streamed or are saved in a video library on the SPC website: (http://tingshen.court.gov.cn/). (The Supreme People’s Monitor can be seen attending a hearing here).

As mentioned previously, some SPC proceedings, including capital punishment review  and review of lower court rulings not to enforce foreign or foreign-related arbitral awards, are not considered “court hearings.”)

According to a Xinhua report on 10 May, the six circuit courts of the Supreme People’s Court (SPC) accepted 2,922 (and concluded 1909) civil, administrative and criminal cases in the first three months of 2018, accounting for 67.2 percent of the total cases of these types accepted by the SPC.  It is possible to view circuit court hearings on-line on the SPC website.

A total of 8,355 petitions were handled by the circuit courts (in the first 3 months of 2018), accounting for 78.92 percent of petitions handled by the SPC. It is clear two of the goals of establishing the circuit courts (the SPC near your home (“家门口的最高法院”) are being achieved: 1)moving the hearing of many cases to the circuit courts; 2) moving the processing of most petitions to the circuit courts.  It is not clear from these statistics how many petitioners sought to petition the circuit courts (and SPC headquarters) –there are likely many more petitioners who visited than petitions accepted.  As was discussed earlier on this blog, the SPC is seeking to involve lawyers in the criminal petitioning (collateral appeals) process.

The SPC highlighted that in the past five years it had issued 119 judicial interpretations (some of which have been discussed on this blog, many translated by Chinalawtranslate.com) and issued 80 guiding cases (link to cases and analysis) (as Jeremy Daum has written, and Mark Cohen has also noted, the statistics show they are not often used by the courts), but did not release numbers on the other types of documents it had issued (this blog has discussed some of them) or the number of model cases or other cases issued by SPC divisions (this blog has recently focused on ones issued by the criminal divisions).

1. Criminal cases

As is usual, President Zhou Qiang discussed criminal cases first, the topics reflecting their political priority. A total of 6.07 million suspects were convicted in first instance trials of 5.49 million criminal cases. (During that period the Chinese courts heard almost 89 million cases, so criminal cases are clearly a small proportion of the cases heard.)

In keeping with the current political priorities, President Zhou Qiang said the courts “resolutely protect the nation’s political security, in particular the security of the state power and the political system.” Similar to last year, no statistics were given for the number of national security cases heard. He does mention the normative document the the SPC issued jointly with other authorities on religious extremism and terrorism (discussed here).

President Zhou Qiang then discusses corruption-related offenses, mentioning the  asset recovery interpretation discussed last year on this blog.  Thereafter he focuses on property and personal safety-related crimes, mentioning this year’s organized crime normative document (this blog discussed it earlier this year), as well as (among others) its accomplishments relating drug cases and medical violence.

He then discussed cases involving violence against women and children (130,000 cases over the past 5 years, food safety (42000) and environmental protection crimes (88,000), and telecommunications crime. Local court white papers have posted detailed statistics concerning many of these crimes (see a Ningbo court white paper on sexual assault cases against minors and a Shanghai district’s court white paper on environmental protection crimes).

In the concluding paragraph, President Zhou Qiang discusses SPC participation in comprehensive security management. President Zhou Qiang mentions implementing an additional responsibility system on judges of publicizing the law (普法).  This is further to a 2017 notice of the Central Committee and State Council’s General Offices Opinion on State Organs implementing “whoever enforces the law publicizes the law” law publicity responsibility system (关于实行国家机关“谁执法谁普法”普法责任制的意见) that imposes responsibility on state organs enforcing the law (administrative and justice) to publicize the law.  Judges are to use court documents, open hearings, circuit courts, streaming of court cases, and posting legal documents on-line to promote the use of cases to explain the law. It is clear that the SPC is taking the circuit court responsibility system seriously, as the SPC’s #2 Circuit Court has been posting a series of articles on its circuit visits around the Northeast (see here).  This adds somewhat to judges’ workload, but this type of responsibility is not as great a concern as the more general responsibility system.

 

 

 

 

Update on China’s international commercial court

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Judge Gao Xiaoli

Among the many developments flagged in Supreme People’s Court (SPC) President Zhou Qiang’s 2018 report to the National People’s Congress is that the SPC will establish an international commercial tribunal (court)(最 高人民法院国际商事审判庭), as approved by the Central Leading Group for Comprehensively Deepening Reforms. The timing is unknown. The international commercial tribunal (this post will use the term “court”) as is understood clearly, must fit political and technical requirements. This blogpost will look at those, particularly the technical ones, as those are the ones that have escaped the attention of most commentators outside of China.

Background

Although many  articles have been published in the media, both in and out of China after the public announcement to the press about the international commercial court in January, 2018, most of them have little detail on the issues. Some contain uninformed statements, such as the one that quotes an insider at the China Council for the Promotion of International Trade mentioning the use for dispute resolution of “the common law of the United States and European countries” (send the insider back to law school please!).

In the past three months, Judge Gao Xiaoli, deputy head of the SPC’s #4 civil division (photo above), and at least one other person at the SPC has released some information about the court, all of which seems to have eluded international discussions. For those who are not aficionados of Chinese foreign-related dispute resolution, Judge Gao (who often appears at UNCITRAL or international arbitration related conferences or seminars) outside as well as inside mainland China, is a formidable presence in the courtroom. Thanks to the SPC’s streaming of court hearings, it is now possible to see that from any corner of the world.  She is also an impressive speaker. Judge Gao is representative of the judges engaged in technical legal work at the SPC, with a PhD in law from one of China’s leading law schools and experience studying abroad.

Political requirements

On the political requirements, there are at least two, both previously highlighted in this blog.  The more general one was highlighted one year ago–the establishment of the international commercial court relates to a sentence in the Fourth Plenum Decision:

Vigorously participate in the formulation of international norms, promote the handling of foreign-related economic and social affairs according to the law, strengthen our country’s discourse power and influence in international legal affairs, use legal methods to safeguard our country’s sovereignty, security, and development interests.

More specifically, it appears to be the civil and commercial counterpart to the efforts noted on this blog two years ago (concerning dispute resolution in maritime cases),  part of a push to move the locus of China-related dispute resolution from London and other centers in Europe (or elsewhere) to China, where Chinese parties will encounter a more familiar dispute resolution system.

The other political requirement relates to the need to serve major government strategies, the BRI/OBOR one in particular, discussed in this blogpost.  President Zhou Qiang’s 2018 NPC report, as his 2016 report (and presumably 2017 report) contain the phrase “provided service for the country’s major strategies.” As a central government institution, the SPC must do its part to support national major strategies. Since BRI/OBOR has been initiated, President Zhou Qiang’s report has mentioned  BRI/OBOR as one of those major strategies for which the SPC has provided service.

Technical requirements

Further background

The sources that previous commentators missed include the following:

In the press interview, Judge Gao reviews what the SPC has done so far in this area, including several developments previously highlighted on this blog:

  • SPC’s One Belt One Road (BRI/OBOR) policy document;
  • SPC’s OBOR/BRI model/typical cases (see above link and translations by the Stanford Guiding Cases project found here);
  • SPC’s judicial interpretation on demand guarantees, that blogpost explains that with so many Chinese companies focusing on infrastructure projects overseas, Chinese banks have issued billions of dollars in demand guarantees.

 Technical issues

The SPC is looking at three types of investment and trade disputes:

  • state-state disputes (for China, generally WTO);
  • investor-state disputes (ICSID and other institutions, generally using UNCITRAL rules (note that CIETAC and the Shenzhen Court of International Arbitration (SCIA) also have amended their rules to be able to take investor-state disputes, with SCIA using the UNCITRAL rules;
  • disputes between commercial parties.

Judge Gao mentioned that they at the SPC, too have noticed the worldwide trend of other jurisdictions establishing courts to hear investor-state disputes, citing Canada among them and that they are exploring whether the Chinese courts can do so as well.  However, she notes that when China acceded to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), it made a commercial reservation, and the SPC judicial interpretation concerning the New York Convention excluded investor-state disputes, so that currently it is not possible to enforce investor-state awards through the New York Convention. Judge Gao says they are considering solutions to this issue.

Commercial disputes

Definition of OBOR/BRI disputes

Although none of the authors have mentioned this (nor have I, until now), one unrecognized issues in discussing OBOR/BRI disputes is a definitional one–what is a OBOR/BRI related dispute?  It seems that in court practice, the definition is broad, including cases between Chinese contractors and their demand guarantee issuing banks, as well as cross border cases involving Chinese and parties located in OBOR countries.  In my research (including a discrete inquiry with a knowledgeable person), a formal definition is lacking.

Judicial cooperation/enforcement issues

As this earlier blogpost mentioned, enforcement of foreign court judgments is on the SPC’s agenda.  As Judge Gao recognizes, there needs to be a structure for judgments of this international commercial court to be enforced outside of China.  She mentions (as has this blog), that China is actively participating in negotiations on the Hague Convention on the Recognition & Enforcement of Foreign Judgments, and is studying ratification of the Hague Convention on the Choice of Courts Agreements.  She flags also (as has this blog) that the SPC is drafting a judicial interpretation on the recognition and enforcement of foreign civil & commercial judgments.

Practice in other jurisdictions

Judge Gao mentions that the SPC is looking at the international commercial courts in several jurisdictions, including Dubai and Singapore (as mentioned in the earlier blogpost), but also Abu Dhabi, London’s Commercial Court (it appears that someone at the SPC has read this Financial Times article on foreign litigants there), and notes that the Netherlands, Germany, and Belgium are all establishing international commercial courts that use English.

Challenges for the Chinese courts

Judge Gao forthrightly flags a list of issues (my comments in italics) that the SPC faces in establishing an international commercial court. It is likely that she and her colleagues are aware of the additional issues raised as well.

  • judges; she notes that Dubai and Singapore have foreign judges on their international commercial courts, but currently China’s Judges’ Law and People’s Court Organizational Law (being amended) present obstacles to having foreign judges, and without them, the court will not be international and will not be internationally credible (literally, be internationally influential) (但是如果不引进外籍专业性人才参与国际商事法庭的建设,则缺乏国际性,缺乏影响力). My earlier blogpost mentioned the nationality issue. Would qualified foreign judges (or those from Hong Kong) be willing to join the international commercial court? Judge Gao does not mention that the group of Chinese judges qualified to hear these cases is not that large, and they are overloaded with cases, judicial interpretation/other guidance drafting, and other work. Could highly qualified Chinese lawyers be appointed to this court?  It is unclear, and relates to issues of how they would fit into the rigid structure of the judiciary, highlighted here.
  • choice of law; she mentions that parties have freedom concerning choice of law in China, so that would not be a problem.  However, relating to choice of court clauses, Professor Vivienne Bath’s research on parallel proceedings in China (previously mentioned on this blog) shows that Chinese courts do not recognize the validity of those clauses when the choice “lacks an actual connection with the dispute” because of provisions in the Civil Procedure Law.
  • procedure; she queries whether there can be some breakthroughs in civil procedure in this area.  Foreign lawyers are likely to query whether this could mean better discovery of documents. More importantly, what is not mentioned is that China’s failure to have acceded to the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents will also be a major obstacle for the international commercial court. Under current Civil Procedure legislation,  notarization and legalization of documents is often required. The first step is when a party files suit or when a foreign party responds. Additionally, in litigation, evidence from a foreign country often must be notarized and legalized. Notarization and legalization costs time and money and a great deal of effort. At an academic conference in 2017, experts from the institutions involved discussed how to proceed on this.
  • language; Judge Gao notes that the Civil Procedure Law puts obstacles in the way of the international commercial court hearing cases in English.  Note that the pool of Chinese judges able to hear cases in English is not large, and would even further require recruiting judges from outside China’s judicial system.
  • counsel; She mentions the issue of having foreign lawyers handle cases is also an obstacle for the international commercial court, because China’s Civil Procedure Law currently does not permit it.
  • transparency; Judge Gao notes that Chinese judicial transparency and informatization has made great strides, so should be useful to the international commercial court.  However, Judge Gao and her colleagues could usefully look at the type of information accessible to both the parties and general public (and the level of detail in judgments) in other international commercial courts.
  • enforcement; Judge Gao raises the issue of recognition and enforcement of judgments, discussed above.

Where does the SPC go from here?

The article by the post-doctoral student Liao Yuxi suggested that the SPC may want to request the NPC Standing Committee authorize it to suspend some of the problematic provisions of the Civil Procedure Law that Judge Gao flagged above, such as the use of language, and the qualification of judges.  However many of the other issues cannot be resolved so easily, such as international enforcement and the requirement of notarization and legalization of evidence.

As for when we can expect to see some rules relating to the international commercial court, and whether drafts will be circulated for public (or even soft consultation), those are all unclear.  What is clear is that many complicated legal issues face Judge Gao and her colleagues.

 

 

 

 

 

Supreme People’s Court & the new campaign to “sweep away black & eliminate evil”

Screen Shot 2018-01-31 at 11.21.40 AMLast week, China announced the latest campaign to “sweep away black and eliminate evil,” saohei chu’e (扫黑除恶),“Concerning the Carrying Out of a Special Action to Sweep Away Black and Eliminate Evil” (关于开展扫黑除恶专项行动的通知) (full text not yet released) with Xinhua news reporting that it reflects it reflects the leadership’s  outlook on security and people-centered governance thought.  The Supreme People’s Court (SPC) is an integral part of the campaign and was one of the institutions (along with the Supreme People’s Procuratorate, Ministry of Public Security, and Ministry of Justice) that issued a guiding opinion (办理黑恶势力犯罪案件的指导意见) on how the campaign is to be carried out (text found here). As previously discussed on this blog (and in a forthcoming article), there is no transparency requirement for guiding opinions and other “judicial normative documents” that are not judicial interpretations.  What has been made transparent (in a quick dive into the Wechatosphere) is that the SPC is both clarifying the criminal law issues to the legal community and signalling through releasing typical cases and other actions that lower authorities should not use the campaign to confiscate the property of private entrepreneurs. But will other imperatives trump that signal?

  1. Clarifying the legal issues

Although the commentators in this Voice of America program weren’t aware of it, there is a body of (confusing) legislation, partially described in this book chapter (somewhat outdated).  The authoritative (because it is published by the five criminal divisions of the SPC)  Reference to Criminal Trial (刑事审判参考), had published a special issue (issue #107) on organized crime law last summer. (For those of us who read more quickly in English, the editors have helpfully compiled an English translation of the table of contents. (see below)

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In his 29 January Wechat posting on his 说刑品案 (“Speak About Criminal Law, Evaluate Cases”) Wechat account, its editor, Judge Yu Tongzhi (于同志), a judge in the #2 Criminal Division and one of the editors of Reference to Criminal Trial, set out 20 Q & A’s with guidance on the legal issues (derived from last summer’s issue).

Judge Yu described the posting as to “coordinate” (配合) with this campaign, but is the author’s way of saying that the law on these issues is confusing and all involved, whether they are judges, prosecutors, public security or defense lawyers need an authoritative steer through the forest of law, judicial interpretations, and other guidance.   As is apparent from the photo above, the guidance includes a 2015 conference summary on organized crime, guiding cases (指导案例)(not to confused with those guiding cases (指导性案例 issued by the SPC itself), authoritative commentary on the 2015 conference summary, major cases, and discussions by judges of difficult legal issues. The guidance posted often illustrates answers with examples from the guiding cases and cautions that standards should not be improperly expanded, such as the definition of a “gang member.”  He does not include a summary of the law on property seizure, the subject of one of the articles in issue #107.

Some of the organized crime legal issues are analogous to those in other jurisdictions and last year one of the SPC websites published a long article analyzing this area of law (and its problems), suggesting that China look to US RICO legislation.

The first of the 20 questions is:

  1. What’s the connection between the 2015 and 2009  conference summaries on organized crime?

Don’t be surprised if you haven’t heard of either conference summary, as neither one seems to have been incorporated in any of the major translation databases.  As to what conference summaries are, Conference summaries are what the SPC entitles “judicial normative documents”  (there are a number of titles for these) and often address new issues or areas of law in which the law is not settled.   “Conference summaries” are also a form of Communist Party/government document.

The relationship is addressed in the article on the application of the 2015 conference summary by several heads of SPC criminal divisions in issue #107.  Their view is that the two conference summaries should be read together, which the later one taken as an elaboration of the first, with newer provisions superseding the older ones.

The campaign & private entrepreneurs

The second signal that the SPC is sending is that the “sweep away black and eliminate evil” campaign should not be used to abuse private entrepreneurs.  On 30 January, the SPC issued seven typical cases on protecting private property rights and the rights of entrepreneurs, one of which involves a case that occurred during the 2008 “strike black” campaign.  As summarized in China Daily,  the Liaoning Public Security Department arrested Liu Hua and Liu Jie in a 2008 criminal investigation and seized 20 million yuan (about 3.16 million U.S. dollars) in funds from their company, Beipeng Real Estate Development Co. Ltd. in Shenyang. In 2014, a local court in Benxi convicted the two and the company of illegal occupation of farmland but exempted them from criminal punishment. Liaoning Public Security refused to return the seized funds and related financial documents were not returned.  SPC Vice President Tao Kaiyuan SPC Vice President Tao Kaiyuan acted as the chief judge, and the SPC’s State Compensation Committee ruled the Liaoning Public Security Department should return the funds with  interest. Judge Hu Yunteng and the  #2 Circuit Court  were involved in this as well. Company counsel’s detailed account of this case (highly recommended!) found here. Judge Zhu Heqing, Deputy head of the #3 Criminal Division, discussed in the article mentioned above in #107 the problems with the law and practice of property seizures, such as the lack of a definition of “organized crime related property” (涉黑财物) and related seizure procedures, as well as the lack of procedures to require the return of property improperly seized.

Some thoughts

As the document on implementing this campaign has not been released, we cannot know whether it includes performance targets that will lead local authorities to “round the usual suspects up.” What is apparent from the Wechat posting and much more from issue #107, is that the law is this area is unclear, lacks procedures for protecting the property of the entities involved (not to mention the entrepreneurs), and can be easily abused by local authorities.  As we know from the case above and other cases, entrepreneurs will then spend years seeking the return of their property.  The SPC must coordinate with this latest campaign while protecting the rights of entrepreneurs, and avoid a new set of mistaken cases.

 

 

 

 

China’s draft court law

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Screenshot of trial in the Haidian district court

A draft of the first comprehensive overhaul of China’s court law since 1979 (the organic/organizational law of the people’s courts) is now open for public comment (until 4 October).  A translation of the draft is available at Chinalawtranslate.com (many thanks to those who made it possible).  A translation of the current law is here and an explanation of the amendments has also been published.  The draft is significantly longer than the earlier version of the law (66 vs. 40 articles). It retains much of the framework of the old law, incorporates legislative changes as well many of the judicial reforms, particularly since the Third and Fourth Plenums, and leaves some flexibility for future reforms. As with the current law, Communist Party regulations address (and add another layer to) some of the broad issues addressed in the draft law. Some comments:

Drafting process

The drafting process (the explanation has the details) reflects the drafting of much Chinese legislation (further insights about the process from Jamie Horsley here)–several years of soft consultation by the drafters of relevant Party and government authorities, plus one month of public consultations. Among the central Party authorities consulted were: Central Commission for Discipline Inspection, Central Organizational Department (in charge of cadres); Central Staffing Commission (in charge of headcount); Central Political Legal Committee.  On the government side: Supreme People’s Court and Procuratorate; State Council Legislative Affairs Office; Ministry of Finance, National People’s Congress Legal Work Committee. Investigations and consultations were also done at a local level.

General Provisions

Some of the dated language from the 1979 version has been deleted (references to the “system of the dictatorship of the proletariat,” “socialist property,” and the “smooth progress of the socialist revolution.” replaced by “lawful rights and interests of legal persons,” and protection of national security and social order. Although the draft court law deletes language that distinguishes among owners of different types of Chinese companies, Chinese criminal law still does (see this chart setting out sentencing guidelines, for example).

Article 10 of the draft incorporates judicial responsibility systems into the law (a prominent feature of the recent judicial reforms), but a topic regarding which dispassionate analysis is hard to find.

The draft contains clear statements about judicial openness and the right of the masses (i.e. ordinary people, that term is alive and well) to know about the work of the courts (according to law).

Organization of the courts

The draft mentions some of the specialized and special courts that have been established over the last thirty years:

Article 14 incorporates the guiding case system into the draft.

Article 15 of the draft crystallizes the SPC’s circuit courts (tribunals) into law (SPC regulations on the jurisdiction of those courts found here).

Article 24 gives space for establishing cross-administrative region courts (the time has not yet been ripe for establishing them).

Articles 26 and 27 give courts some flexibility on their internal structure (courts in remote areas with few cases need not establish divisions, while large city courts can have multiple specialized ones. (Earlier blogposts have mentioned establishing bankruptcy divisions, for example.)

Trial Organization

This section of the draft law incorporates the current judicial reforms in several ways, including:

  • In Articles 30-31, on the operation of collegial panels and requiring the court president to be the presiding judge when s(he) participates in a collegial panel;
  • Mentioning in Article 32 that the members of the collegial panel are the ones to sign their judgments and dissenting opinions are to be recorded;
  • Article 34 gives space for eliminating the role of people’s assessors to determine issues of law;
  • Article 37 incorporates into law previous SPC regulations on judicial interpretations and guiding cases, specifying that they must be approved by the SPC judicial committee;
  • Article 40 contains provisions imposing liability on members of the adjudication/judicial committee for their comments and their votes. It also incorporates into the law SPC regulations on disclosing the views of the judicial committee in the final judgments, except where the law provides it would be inappropriate;
  • Article 41 also incorporates into the law the specialized committees mentioned in judicial reform documents (briefly discussed in prior blogposts).

Court Personnel

Article 42 requires court presidents to have legal knowledge and experience.  It has long been an issue that court presidents have been appointed more for their political than legal expertise.

It appears that the reform of having judges below the provincial level appointed by the provincial level is not yet in place,

This section of the draft court law incorporates the personnel reforms set out in the judicial reform documents in several ways: quota judge system; selecting higher court judges from the lower courts; the roles of judicial assistants and clerks (changed from the old model); other support personnel in the courts; a new career track for judges, including judicial selection committees; preference to hiring judges with legal qualifications;

Safeguards for the courts’ exercise of authority

Article 56 gives courts the right to refuse to engage in activities that violate their legally prescribed duties (with this end the phenomenon of judges sweeping streets?);

Article 57 relates to reforms relating to enforcement of judgments (and the social credit system);

Article 59 relates to threats to judges’ physical safety and personal dignity, that occur several times a year in China, and have been the subject of SPC regulations;

Scope for further reforms for judicial personnel management (including salary reform!) are included in this section.

Article 60 reiterates the principle that judges may only be transferred, demoted, dismissed according to procedures specified by law (Party procedures  to which most judges are subject,are governed by Party rules.)

Article 62 relates to judicial (and judicial personnel training)–some earlier blogposts have shed light on this topic.

Article 64 incorporates into the draft law President Zhou Qiang’s focus on the informatization (including use of the internet and big data) of the Chinese courts.

Etc.

My apologies to readers for the long gap between posts, but several long haul trips from Hong Kong plus teaching have left me no time to post.

Chinese courts & “foreign beneficial experience”

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US 7th Circuit Judge Posner speaking by videolink at National Judicial College (NJC) in 2016

Supreme People’s Court (SPC) President Zhou Qiang has been widely quoted for saying in January of this year that Chinese courts should strengthen ideological work and show the sword to mistaken Western ideas of “constitutional democracy”, “separation of powers” and “judicial independence.” What is not widely known outside China is that the relationship between the Chinese judiciary and some of the major international judiciaries (I’ll use the term “Western”) is more nuanced than it appears.  Close observation reveals the following:

  • high-level summits between major foreign and Chinese judiciaries;
  • senior Western judges speaking to or providing training to senior Chinese judges;
  • pilot projects in the Chinese courts involving foreign judiciaries;
  • SPC journals and media outlets publishing the translation of cases from and reports of major Western judiciaries; and
  • SPC judges reviewing legislation, institutions, and concepts from other judiciaries in judicial reform.

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 further elaborated this view on his visit to China University of Political Science and Law on May 3:

China shall actively absorb and refer to successful legal practices worldwide, 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).

[The Xinhua report on Xi’s visit in English–“China should take successful legal practices worldwide as reference, but not simply copy them” omits the detail found in the Chinese reports.

Some examples of the way  the SPC considers the “beneficial legal experiences in the rule of law abroad”:

  1. High level summits (some of which were agreed to on a presidential/head of state level) on commercial legal issues, such as the August, 2016 U.S.-China (or China-U.S.) Judicial Summit

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August, 2016 US-China Judicial Dialogue, then Principal Deputy Associate Attorney General William Baer in foreground

“Our three talented and experienced U.S. judges discussed with senior Chinese judges and other experts topics relevant to commercial cases, ranging from case management to evidence, expert witnesses, amicus briefs, the use of precedents and China’s system of “guiding cases.” Speakers from both sides gave presentations that explored complex questions on technical areas of law. The conversations, during the formal meetings and tea breaks, were lively, candid, direct and constructive, highlighting both the similarities in and important differences between the U.S. and Chinese legal and judicial systems. I told our Chinese hosts that the views our judges expressed would be entirely their own, reflecting our separation of powers and the independence of our judiciary. Our judges displayed that independence as they weighed in on a range of issues, such as the role of precedents in interpreting statutes and the challenge of balancing public access to information while safeguarding privacy and protecting trade secrets.

Several of the Chinese participants discussed pending cases in U.S. courts involving Chinese defendants. I [William Baer] believe it was useful for us to air our differences and for our experts to exchange views on technical and sensitive areas of law. At the meeting, it was clear that although we come from different backgrounds and will not always agree, we all recognize the importance of legal reasoning and that increased transparency is a way of earning the public’s trust in the fairness and objectivity of the judicial system.”(from the DOJ website).

2.  Training of Chinese judges by foreign judges

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Dr. Matthias Keller, presiding judge, Aachen administrative court, teaching at NJC, March, 2017

A number of foreign judiciaries have in place long-term training programs with the Chinese judiciary, with the German judiciary among the pioneers.  The National Judicial College (NJC) (affiliated with the SPC) has a long-term program in place with the Germany judiciary, involving the German Judicial Academy, the German Federal Ministry of Justice & Consumer Protection, GIZ (the German international cooperation organization) and other parties, which teaches subsumption and related techniques of applying laws to facts (further explained here).  The NJC has published a set of textbooks that apply the subsumption method to Chinese law.

It is likely that close to 10,000 Chinese judges have been trained under the German program. Common sense indicates that the NJC has continued with the program because it is useful to Chinese judges.

A recent example of  the German training program is illustrated by the photo above, showing Dr. Matthias Keller, presiding judge of the Aachen administrative court giving a training course on the methodology of the application of law in administrative law to 150 Chinese administrative judges, mostly from intermediate and higher people’s courts.

3. Pilot projects in the Chinese courts involving foreign judiciaries

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Australian judges have worked with the Australian Human Rights Commission on a ‘Sino-Australia Anti-Domestic Violence Multi-Agency Putian Pilot Program’ in Putian, Fujian Province, involving judges from the SPC, Fujian Higher People’s Court, and Putian Intermediate Court.

4.  Publishing the translation of cases and reports from foreign judiciaries.

Some examples in recent months include:

  •  excerpts from Supreme Court decision Padilla v. Kentucky (published 7 February 2017), for those unfamiliar, it relates to plea bargaining and effective counsel);
  • U.S. Chief Justice Robert’s 2016 year end report on the federal judiciary;
  • U.S. federal judiciary’s strategic plan, for their takeaways for a Chinese audience;
  • Summary of a July, 2016 report on cameras in the federal courts;
  • Summary of the UK’s 2015 Civil Justice Council’s Online Dispute Resolution Advisory Group’s report on Online Dispute Resolution for Low Value Civil Claims.

5. Considering foreign legal concepts in judicial reform

Foreign legal concepts are considered by the SPC in a broad range of areas of legal reform, most of them unknown to foreign observers.  Several of the more well known examples include: plea bargaining  (see this article by an SPC judge (a comparison with the US “model” is included in Jeremy Daum’s  analysis of China’s expedited criminal procedure reform).  Last year’s policy document on diversified dispute resolution (previous blogpost here) specifically mentions considering concepts from abroad,On the ongoing amendments to the Judges’ Law (the draft has not yet been released), SPC Vice President Shen Deyong said in late April, “we need to learn from and refer to the successful practices of the management system of the judicial team by jurisdictions abroad, but they must be selectively filtered for Chinese use (要学习借鉴域外法官队伍管理的制度成果,甄别吸收,为我所用)。

Comment

A careful review of official statements, publications, and actions by the SPC and its affiliated institutions, as well as research by individual SPC judges shows an intense interest in how the rest of the world deals with some of the challenges facing the Chinese judiciary coupled with a recognition that any possible foreign model or provision will need to fit the political, cultural, economic, and institutional reality of China, and that certain poisonous ideas must not be transplanted.  [Those particularly interested could pore through two publications of the SPC judicial reform office (Guide to the Opinions on Comprehensively Deepening Reforms of People’s Courts and the Guide to the Opinions on Judicial Accountability System of People’s Courts, in which the authors discuss relevant provisions in principal jurisdictions abroad.]

Those who either are most concerned about diluting the Chinese essence of the SPC (or jealous/emotionally bruised) seem to have saved their most poisonous criticism for off-line comments, as I am unable to locate a written version of the nasty comments that a senior Chinese academic shared with me about the over-Westernization of judicial reform or other nasty comments said to have been made about research by certain SPC judges into foreign legal systems.  It is hard to know whether the persons involved are motivated by jealousy or a real belief that these measures described above will have a negative effect on the development of the Chinese judiciary.  It seems safe to say that the concerns raised in the 19th century on the dilution of the essence of Chinese culture when borrowing from the West seem to be alive and well in the 21st century.

 

Supreme People’s Court to require prior case search

Screen Shot 2016-07-30 at 12.13.38 PMIn August, 2016, I wrote about how non-guiding Chinese cases are guiding the development of Chinese law.  I described what I saw as a prevalent practice in the Chinese judiciary that judges search a particular issue to see how other courts have decided a particular issue or the elements to which they have looked when deciding a particular issue. In that blogpost, I questioned whether the Supreme People’s Court (SPC) had noticed this practice.  Under a recent SPC policy document that will become effective on 1 May, this prevalent practice will become a required practice. The SPC’s Opinions on Putting a Judicial Responsibility System in Place and Improving Mechanisms for Trial Oversight and Management (Provisional) contains the following phrase:

6. All levels of people’s courts shall give full play to the professional judges’ conferences and adjudication committee’s roles in summarizing trial experience unifying judgment standards; and on the foundation of improving working mechanisms such as consulting similar cases and judgment guidance; a mechanism is to be established requiring the search of similar cases and relevant cases, to ensure a uniform judgment standard for similar cases, and the uniform application of law.

六、各级人民法院应当充分发挥专业法官会议、审判委员会总结审判经验、统一裁判标准的作用,在完善类案参考、裁判指引等工作机制基础上,建立类案及关联案件强制检索机制,确保类案裁判标准统一、法律适用统一。

This requires judges to do what many of them have been already doing –searching the case databases for prior cases that raise the same or similar issues and other issues related to the principal one(s). This principle will be applicable to judges hearing all sorts of cases–civil, criminal, administrative, enforcement, and intellectual property. It will not be evident to the reader of a Chinese judgment or ruling that searches have been done because non-guiding cases may not be cited.

Requiring a search of prior and related cases is an important step in the evolution of the Chinese case law system.  That system (as I wrote recently), supplements and informs judicial interpretations. Judicial interpretations often take years to be finalized.  National legislation (by the National People’s Congress and its Standing Committee) is hopelessly inadequate for the needs of the court system.  Case law is needed to fill in the gaps.  Judges, who are assuming greater individual responsibility for their decisions, need case law for more specific guidance.

In her remarks in November, 2016 focused on intellectual property, Justice Tao Kaiyuan revealed the thinking of the SPC leadership:

The construction of the case guidance system [Chinese case law] is not to create a new legal source, but to…uncover the broader consensus of the industry, to further refine legal rules and to provide better law for society. It is also expected to lay the foundation for the drafting of judicial interpretations…The function of the intellectual property case guidance system is to enhance the predictability of the judiciary by establishing an intellectual property case guidance system to promote the unity of judicial standards.

 

 

 

Signals in Zhou Qiang’s 2017 NPC Report (Part 1)

Most people who have commented (outside of China) on Supreme People’s Court (SPC) President Zhou Qiang’s March, 2017 report (on 2016 work) to the National People’s Congress (NPC) didn’t have the patience to read (or listen) much beyond the initial section, which mentions the conviction of Zhou Shifeng as indicating that the courts are doing their part to crack down on state subversion.  It appears to be another in a series of colorless government reports.  But for those with the ability (or at least the patience) to decode this report, it provides insights into the Chinese courts, economy, and society.

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The report, which went through 34 drafts, is intended to send multiple signals to multiple institutions, particularly the political leadership, in the months before the 19th Party Congress.

According to a report on how the report was drafted, the drafting group (which communicated through a Wechat group to avoid time-consuming bureaucratic procedures) faced the issue of how to summarize the work of the People’s Court in 2016 correctly.  The guidance from President Zhou on the report–it must:

  1. fully embody the upholding of Party leadership, that court functions (审判职) must serve the Party and country’s overall situation;
  2. embody the new spirit of reform, showing the (positive)impact of judicial reform on the courts and show the ordinary people what they have gained;
  3. not avoid the mention of problems, but indicate that they can be resolved through reform.

Underneath these political principles, the operation of a court system with Chinese characteristics is visible.

A partial decoding of the report reveals the points listed below (to be continued in Part 2).

1. Caseload on the rise

The caseload in the Chinese courts continues to rise significantly, at the same time that headcount in the courts is being reduced.  Diversified dispute resolution (the jargon outside of China is alternative dispute resolution) is being stressed.

  • SPC itself is dealing with a massive increase in its cases, 42.6% higher than 2016, and that number was significantly higher than 2015.

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    2016, SPC cases accepted 22,742, up 42.3%, concluded 20151, 42.6%, Circuit Cts #1 & 2 accepted 4721 cases in last 2 yrs, resolved 4573 cases

     

The statistics on the SPC’s caseload are not broken down further, but are understood to be mostly civil, commercial, and administrative.  It appears from a search of one of the case databases that not all of the SPC judgments or rulings have been published (a search of one of the judgment databases showed 6600+, and only some of the death penalty approvals). It seems also that the database does not include SPC cases such as the judicial review of certain foreign and foreign-related arbitration awards.

Although the report does not focus on the reasons for the massive increase in SPC cases, careful observation reveals the following reasons:

  • establishment of the circuit courts, hearing more cases and ruling on applications for retrials;
  • increase in the number of civil and commercial cases with large amounts in dispute;
  • SPC itself has implemented the case registration system; and
  • changes in law giving litigants rights where none previously existed.

The report also mentioned that 29 judicial interpretations were issued (some analyzed on this blog) and that 21 guiding cases were issued.  Model cases and judicial policy documents were not separately set out, although some were listed in the appendix to the SPC report distributed to delegates.

Lower courts

23,030,000 cases accepted by lower courts, up 18%, cases resolved, 19,773,000; amounts in dispute up 23%

The pie chart below sets out the statistical distribution of cases heard by the Chinese courts:

 

Screen Shot 2017-03-16 at 9.59.06 PMThe pie chart of cases heard, enforced and closed in 2016 shows:

  • about 60% of those cases were civil, commercial, or intellectual property cases;
  • 6.41% criminal cases,
  • 3.40% parole, sentence reduction cases;
  • almost 26% enforcement cases,
  • .03% state compensation cases,
  • petition or application for retrial, .91%;
  • and 1.66% administrative cases.

Although the stress in Zhou Qiang’s report is placed on law and order, in fact many more cases in the Chinese courts are civil and commercial rather than criminal.

2. Social stability, public order, law & order are major concerns

Criminal cases have a prominent place in the report, although the data reveals a slight increase in the number of cases  (1.5%), involving the conviction of 1,220,000 people, down 1%. (Note that many minor offenses are punished by the police, with no court procedures).

Although the report mentioned the Zhou Shifeng case (state security) and criminal punishment of terrorist and cult crimes, it did not release statistics on the number of cases of any of these crimes heard.  Corruption cases totaled 45,000 cases, involving 63,000 persons.  Violent crimes (murder, robbery, theft) cases 226,000. Drug cases: 118,000, a significant decrease from 2015. 2016 cases of human trafficking and  sexual assault on women and children totaled 5335, while telecommunications fraud cases in 2016 totaled 1726.  Only 213 cases involving schoolyard bullying were heard and the SPC revealed that the drafting of a judicial interpretation on the subject is underway. The report highlighted some of the well-known criminal cases, including the insider trading case against Xu Xiang and the Kuai Bo obscenity cases to illustrate and criminal law-related judicial interpretations to signal that the courts are serving policy needs in punishing crime.

The same section described what has been done in 2016 to correct mistaken cases, highlighting the Nie Shubin case (reheard by Judge Hu Yuteng and colleagues) as an example.  The report revealed that the local courts retried only 1376 criminal petition cases, likely a tiny fraction of the criminal petitions submitted.

3. Maintain economic development

As President Zhou Qiang indicated, the way that the Chinese courts operate is Party/government policy-driven (they must serve the greater situation). Serving the greater situation meant, in 2016, that the Chinese courts heard 4,026,000 first instance commercial cases, a 20.3% increase year on year.  He also mentioned the 3373 bankruptcy cases analyzed in an earlier blogpost. Of those 4 million commercial cases, 1,248,000 involved securities, futures, insurance, and commercial paper and 255,000 real estate cases and 318,000 rural land disputes. Other implications are discussed below.

This section of the report devoted a paragraph to a topic discussed last year on this blog: the courts serving major government strategies, including One Belt One Road, the Yangtze River Belt, and Beijing-Tianjin-Hebei coordinated development.

Green development , intellectual property (IPR), property rights (of private entrepreneurs), serving maritime and major country strategy, socialist core values, judicial solutions to new problems and cross-border assistance also merited mention in this section.

  1. The courts heard 133,000 environmental and natural resources cases, with Fujian, Jiangxi and Guizhou courts designated as experimental environmental courts.  While public interest environmental and procuratorate brought (environmental) cases were mentioned, statistics were not set out.
  2. First instance IPR cases totaled 147,000, with several cities (Nanjing, Suzhou, Wuhan, and Chengdu) establishing IPR divisions to take cases across administrative boundaries. This section mentioned the Jordan trademark case and the IPR courts.
  3. On protection of property rights, the report mentioned some of the documents intended to protect private entrepreneurs discussed on this blog, as well as 10 model cases.
  4. On maritime and cross-border cases, the report mentions the judicial interpretations on maritime jurisdiction (discussed in this blogpost), intended to support the government’s maritime policy, including in the South China Sea.  The Chinese courts heard only 6899 commercial cases involving foreign parties (this means that of the 2016 19,200 civil and commercial cases mentioned by Judge Zhang Yongjian, most must have been civil) and 16,000 maritime cases. The report again mentions making China a maritime judicial center, further explained in my 2016 article.
  5. On the relevance of socialist core values to the courts, that is meant to incorporate socialist core values into law (although they should be understood to have always to be there) and to give the Langya Heroes special protection under China’s evolving defamation law.
  6. Judicial solutions to new issues included internet related issues, including e-commerce cases, internet finance cases, and theft of mobile data; the first surrogacy case, and judicial recommendations to Party and government organizations.
  7. In the section on international cooperation, President Zhou Qiang revealed that fewer than 3000 cases involving mutual judicial assistance were handled. The bureaucratic and lengthy procedures for judicial assistance in commercial cases has long been an issue for lawyers and other legal professional outside of China.  This is likely to change (in the long run, as Chinese courts increasingly seek to obtain evidence from abroad).  US-China dialogue on bankruptcy issues and cooperation with One Belt One Road countries (cases involving these countries are increasing significantly), were also mentioned here.

TO BE CONTINUED

 

Supreme People’s Court & foreign-related disputes

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Judge Zhang Yongjian, chief judge of the Supreme People’s Court (SPC)’s #4 Civil Division (responsible for foreign, Hong Kong, Macau, and Taiwan related commercial issues) previously featured on this blog, gave an interview to Legal Daily on the sidelines of the NPC meeting. This quick blogpost sets out some of the useful information from the interview:

He provided some data on the number of cross border cases:

  • Total number of foreign-related cases of all types (first, second instance, retrial, enforcement) heard and resolved: 25900, up 9.38%, among which 1061 were criminal,19200 civil and 3629 administrative, and about 2000 enforcement cases. The civil and commercial cases increased almost 11% compared to last year and accounted for about 75% of all foreign-related cases.
  • Total number of Hong Kong, Macau, Taiwan related civil and commercial cases closed: 27053 civil and commercial cases, Judge Zhang said that they accounted for 85% of all cases involving “greater China.”

The cases coming before the Chinese courts differ from the old trading and joint venture disputes, with many more cases involving demand guarantees, international factoring, private equity funds, stock options in companies listed overseas listed companies, cross-border telecommunications (fraud?), bonded trade disputes.

(As this observer has previously predicted), the number of cases related to One Belt One Road (OBOR) is increasing relatively quickly, while the number involving the United States, Britain, Germany, are decline. Cross-border project contracting and international logistics related cases are on the increase, as well as foreign-related intellectual property cases and maritime cases. Although Judge Zhang did not say so, it appears that many of these disputes are related to Chinese companies going out as well as OBOR, and may reflect inadequate documentation of the projects. The increase in maritime cases is linked to the ongoing decline in the shipping industry.  Chinese maritime courts have heard cases related to the Hanjin bankruptcy as well as large numbers of cases involving ship crew.

Challenges for the Chinese courts in hearing cross border cases:  encountering many “blank spaces” in Chinese legislation; conflict of laws with neighboring countries.  Other ongoing bottlenecks for Chinese courts in hearing cross-border cases–service of process to overseas parties; obtaining evidence crossborder; determining facts that have occurred abroad; determining and applying foreign law.

Judge Zhang highlighted the solutions for the Chinese courts in dealing with the difficulties:

  • SPC issuing judicial interpretations and other judicial guidance;
  • establishing a case guidance and reference system for the lower courts, including model cases, guiding cases, and selected cases (i.e. as selected by the SPC), to guide and limit judges’ discretion.
  • The SPC selecting some commercial cases (relating to free trade zones, internet finance, cross border investment financing) with an international impact as a model.
  • To enable correct and just hearing of cases, the higher and lower courts should be in touch in a timely matter and establish a system for supervision before, during and after a case. [What this means for judicial autonomy in hearing cases and the appeal system is not said.]
  • On the goals for 2017, those include establishing an OBOR dispute resolution center (推进设立“一带一路”争端解决中心的建立,促进“一带一路”建设). This is likely linked to the May, 2017 OBOR Conference to be held in Beijing.  Judge Zhang did not further specify, but it seems unlikely to mean establishing China’s own investment dispute resolution center. Perhaps this means increasing the role of Chinese courts in hearing cross-border cases involving OBOR jurisdictions.

Judge Zhang mentioned that he and his colleagues in 2017 have a variety of difficult issues that will be the subject of judicial interpretations or policy documents. This observer hopes that they will find it appropriate to consult the international legal community when drafting the following judicial interpretations that are on their agenda:

  • Enforcement of foreign civil and commercial judgments (possibly related the the Judgments Convention being negotiated under the auspices of the Hague Conference on Private International Law, and in the near term, to the enforcement of judgments through mutual judicial assistance treaties;
  • cross-border guarantees;
  • labor issues for ship crew;
  • damages in marine environmental cases;
  • jurisdiction in foreign-related cases, particularly civil and commercial cases;
  • judicial review of arbitration (this has been signalled for at least two years).

Judge Zhang signalled that they want to establish an English language website on foreign-related civil and commercial matters.  It is hoped that this new website will post information in a more timely manner than the current SPC English language website. An (unsolicited) recommendation is to hire an expatriate editor (similar to Xinhua and other Chinese media outlets) to assist in delivering content that meets institutional requirements and interests the foreign user.

All these developments relate back to one sentence in the Fourth Plenum Decision:

Vigorously participate in the formulation of international norms, promote the handling of foreign-related economic and social affairs according to the law, strengthen our country’s discourse power and influence in international legal affairs, use legal methods to safeguard our country’s sovereignty, security, and development interests.

 

 

 

How the Supreme People’s Court uses case law & other sources when it guides the lower courts

As my fellow blogger, Jeremy Daum and I have written, China’s guiding case system has captured the attention of the world outside of China, likely due to a combination of the special status accorded guiding cases by the Supreme People’s Court (SPC) and the impressive efforts of Stanford Law School’s China Guiding Cases Project.  One of the ways that the SPC supervises and guides the lower courts is by publishing handbooks to aid the lower courts in quickly determining the applicable legal rules in a system in which a comprehensive legal code is the ideal but not the reality. One of those handbooks is the set of books pictured above, the Collection of the Supreme People’s Court’s Judicial Rules  (Collection of Judicial Rules) (最高人民法院司法观点集成), published by the People’s Court Press, now in its 2nd edition. A closer look at the Collection of Judicial Rules provides insights into sources of law used by the SPC, and China’s evolving case law system, including the place of guiding cases

As described by Judge Liu Dequan, the general editor, the sources include;

  1. Judicial interpretations;
  2. the spirit of judicial policy (from the speeches of the SPC president and vice presidents responsible for the substantive area);
  3. responses (答复) issued by the various divisions of the SPC;
  4. opinions (意见), answers, (解答),trial case handling guidance (审判办案指南) research opinions of the research office (研究意见) and other guidance issued by the various divisions of the SPC and speeches given by the heads of those divisions at national court conferences (these blogposts summarized the takeaways from some court conferences);
  5. guiding cases, SPC cases, SPC bulletin cases.
  6. Supplemented by the principal views of SPC judges and writings of SPC judges.

Below are samples from one of the volumes on administrative law:

A party that disputes compulsory measures imposed by the family planing authorities to freeze property, limit personal freedom etc. can file administrative litigation (#22)

The response cites a 1996 judicial interpretation, supplemented by a selection from a book by Judge Jiang Bixin and Liang Fengyun,  that confirms that the courts may accept such cases.

The act of issuing a transcript and diploma by a higher education institution is within the scope of administrative litigation (#42)

The editors cite the 2014 administrative litigation trial case handling guidance and several SPC bulletin cases. The case guidance provides that when higher education institutions issue transcripts, diplomas, and expel students, they are acting under authority delegated by law, and so those are administrative acts which a party may challenge under administrative litigation law.

The editors then set out the bright line rule (要旨) set out in several SPC Bulletin cases: Tian Yong v. Beijing Science & Technology University (1999) (re-issued as guiding case #38) and Yang Baoxi v. Tianjin Clothing Technical School (2005);

Then they cite several administrative trial guiding cases, including Wu Huayu v. Central China Agricultural University.

If there is a conflict between laws, the hearing of the case must be suspended while a response to request for instructions is received from the SPC (#351)

The editors set out a 1996 response of the SPC (made after consultation with the State Council Legislative Affairs Office) to the Fujian Higher People’s Court concerning the exploitation of geothermal water resources.

The editors then set out a SPC Bulletin case, Fujian Hydropower Design Institute disputes an administrative penalty decision by the Provincial Land & Mining Department, summarizing the bright line rule (as above). The editors then supplement the cases with an excerpt from the publication by Judges Jiang Bixin and Liang Fengyun mentioned above.

Comments

The sources used by the SPC judges in compiling the handbook may (or may not) be surprising to a foreign observer–such as the speeches by court leaders and various types of responses by SPC divisions that have no publication requirement. These sources appear to reflect SPC practice and do not seem to be consolidated into some type of legal rules.  While the SPC’s transparency is far greater than before (especially for a person with historical perspective), there are still significant gaps that face lawyers, litigants, not to mention researchers.

The SPC sees its case law system (still evolving) as a supplement to judicial interpretations.  The drafting process for judicial interpretations is a slow one (take the example of the demand guarantee judicial interpretation).  It can easily take several years for an interpretation to be finalized, particularly in the area of civil and commercial law, because SPC judges working on these interpretations must take into account comments from a large variety of interested parties. The rules set out in judicial interpretations must be able to stand the test of time and adjustments to government policies.  Case law is seen as filling in the gaps.  But as can be seen from the excerpt from the handbook above, and recent comments by SPC Vice President Tao Kaiyuan, the 77 guiding cases, while having an anointed place in that case law system, are one part.  Justice Tao Kaiyuan’s comments also reveal that case law, including guiding cases, is seen as being useful for the drafting of judicial interpretations:

The construction of the case guidance system [Chinese case law] is not to create a new legal source, but to…uncover the broader consensus of the industry, to further refine legal rules and to provide better law for society. It is also expected to lay the foundation for the drafting of judicial interpretations.

Tao Kaiyuan pointed out that the Supreme People’s Court Intellectual Property Case Guidance Research (Beijing) base is creating a guidance system for intellectual property cases with SPC Guiding Cases, cases published in the SPC Bulletin and cases published by the SPC’s Case Research Institute [under the auspices of the National Judicial College], and issued model (typical) cases, are an interactive mutually complimentary whole (是相辅相成、互为补充、互联互动的整体). The function of the intellectual property case guidance system is to enhance the predictability of the judiciary by establishing an intellectual property case guidance system to promote the unity of judicial standards.

Year end 2016 judicial statistics that will be issued in President Zhou Qiang’s report to the National People’s Congress will document that the number of cases, particularly civil and commercial cases, in the Chinese courts continues to rise at a rate that far exceeds China’s GDP.  Case law, including guiding cases, is one source of legal rules that Chinese judges consider when dealing with those cases, whether deciding whether a case should be accepted, seeking to mediate a case, deciding a case, or enforcing a court judgment or ruling.

 

 

Supreme People’s Court Gazette enters the 21st century

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landing page for the SPC Gazette’s electronic platform

Recently the Supreme People’s Court (SPC) took another step in making its Gazette accessible to a mass audience, by establishing an electronic platform accessible from the Supreme People’s Court website:  www.gongbao.court.gov.cn.

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Screen shot of SPC landing page with link to the SPC Gazette

What benefits does the Gazette webpage have for the user? They include easy:

  1. Access to the cases published in the Gazette.  As this blog has highlighted earlier. cases published in the Gazette, both  selected judgments (裁判文书选登), cases decided by various trial divisions of the SPC and reflect their views on certain issues, and cases (案例), model cases submitted by the local courts (through the provincial high courts), which have been reviewed by the various trial divisions of the SPC, are considered quite persuasive, although not as authoritative as guiding cases. Those can be accessed through a full text search of the term being researched.
  2. Checking of which lawyers frequently practice at the SPC, through searching “selected judgments.”
  3. Following the careers of SPC judges. Below is a search for Huang Songyou, the disgraced SPC vice president:screen-shot-2017-03-05-at-9-50-05-pm
  4. Searching prior SPC reports to the NPC for key words, such as ”judicial reform“ or “state security.”
  5. Searching historical judicial statistics, for certain terms–second instances returned results, while “death penalty review” did not.
  6. Searching of judicial interpretations and judicial documents (policy and other SPC documents not considered to be judicial interpreations.)

Where Susan & the Monitor have been cited

Since the Supreme People’s Court Monitor began three years ago, Monitor blogposts have been used as a resource in government reports, as well as in reports or articles and books by think tanks, legal professionals, professors, and students in different parts of the world.

If you have cited Susan or the Supreme People’s Monitor in your work, please add to this list by using the comment function or email.  (The list excludes citations to her 1989 article on the Administrative Litigation (Procedure) Law and her original article on the Supreme People’s Court. A partial list follows below:

  1. 2014 Report of the Congressional-Executive Commission on China, http://www.cecc.gov/sites/chinacommission.house.gov/files/documents/AR14A2J.pdf
  2. 2015 Report of the Congressional-Executive Commission on China, http://www.cecc.gov/sites/chinacommission.house.gov/files/2015%20Annual%20Report.pdf
  3. China’s Environmental Protection Law: A Review, http://www.asiaglobalinstitute.hku.hk/en/chinas-environmental-protection-law-review/pdf/
  4. Susan Trevaskes, Creative Death Penalty Reform in China: The Case of Drug Transportation, Law & Policy, Volume 38, Issue 2, pages 143–161, April 2016
  5. Susan Trevaskes and Elisa Nesossi. Chapter 6: The Sword of Discipline and the Dagger of Justice, http://www.thechinastory.org/yearbooks/yearbook-2014/chapter-6-the-sword-of-discipline-and-the-dagger-of-justice/
  6. Judge Judith Gibson, Social Media and the Electronic “New World” of Judges, International Journal of Court Administration, 2016, http://www.iacajournal.org/articles/abstract/10.18352/ijca.199/
  7. Jonathan Josef Kinkel, High-End Demand: Markets for Legal Services and Pressure for Judicial Autonomy in Urban China (doctoral dissertation), https://repositories.lib.utexas.edu/bitstream/handle/2152/31450/KINKEL-DISSERTATION-2015.pdf?sequence=1
  8. Randall Peerenboom, The Future of Legal Reforms in China: A Critical Appraisal of the Decision on Comprehensively Deepening Reform, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2379161
  9. Renu Rana, China’s Information Disclosure Initiative
    Assessing the Reforms, China Report, http://chr.sagepub.com/content/51/2/129.refs?patientinform-links=yes&legid=spchr;51/2/129
  10. Andrew Scott, RECENT POLITICAL AND LEGAL EFFORTS TO REFORM TRADE SECRET LAW IN CHINA, https://cbatipsforalawstudent.files.wordpress.com/2014/08/political-and-legal-reform-in-china.pdf
  11. Angela Huyue Zhang, Taming the Chinese Leviathan: Is Antitrust Regulation a False Hope?, Stanford Journal of International Law, 51 Stan. J Int’l L. 195, https://litigation-essentials.lexisnexis.com/webcd/app?action=DocumentDisplay&crawlid=1&doctype=cite&docid=51+Stan.+J+Int%27l+L.+195&srctype=smi&srcid=3B15&key=73cdbf3b40630259c81f6625aa2dc670
  12. John M.L. Gibb-Carsley, DEALING WITH THE DRAGON: WHAT SAFEGUARDS ARE REQUIRED TO MAKE AN EXTRADITION TREATY BETWEEN CANADA AND THE PEOPLE’S REPUBLIC OF CHINA CONFORM TO CANADIAN EXTRADITION LAW?, https://open.library.ubc.ca/cIRcle/collections/ubctheses/24/items/1.0221363
  13. John Garrick & Yan Chang Bennett, China’s Socialist Rule of Law Reforms Under Xi Jinping (book), Routledge, 2016
  14. Cecily Baskir, Ma Liqun, & Li Ao, Chinese Clinical Legal Education: Globalizing and Localizing, Clinical Legal Education in Asia: Accessing Justice for the Underprivileged (book), ed. Shuvro Sharker, 2015
  15. Surya Deva, Preface, Socio-Economic Rights in Emerging Free Markets: Comparative Insights from India and China, ed. Surya Deva, 2015
  16. Report of Special Committee of China Affairs, 2014, Hong Kong Bar Association, http://hkba.org/whatsnew/chairman-corner/annual-statement/2014-2015/SC%20on%20Greater%20China%20Affairs%202014%20(e).pdf
  17. Jean MITTELSTAEDT, Jean Mittelstaedt on Jerome A. Cohen, “A Looming Crisis for China’s Legal System: Talented Judges and Lawyers are Leaving the Profession, as Ideology Continues to Trump the Rule of Law” http://lcbackerblog.blogspot.hk/2016/02/jean-mittelstaedt-on-jerome-cohen.html
  18. John Garrick and Yan Chang Bennett, UUMJLS 01/2015; 6(1):1-12.
  19. Anna High, Combating Domestic Violence in China,
    Problems, Progress and Prospects, Pandora’s Box, journal of the Justice & the Law Society of the Queensland Law Society, https://chinaspc.files.wordpress.com/2019/11/d2ae6-31ab3-pandora27sbox2014.pdf
  20. Randall Peerenboom, The Battle Over Legal Reforms in China: Has There Been a Turn Against Law?, The Chinese Journal of Comparative Law, http://cjcl.oxfordjournals.org/content/2/2/188.full
  21.  Mahalakshmi Ganapathy, Paving the path for Rule of law in China – reform or empty rhetoric?, http://www.orfonline.org/research/paving-the-path-for-rule-of-law-in-china-reform-or-empty-rhetoric/
  22. Daniel Rosen, Avoiding the Blind Alley, An Asia Society Policy Institute Report, 2014http://rhg.com/wp-content/uploads/2014/10/AvoidingBlindAlley_ExecutiveSummary.pdf
  23. Fu Hualing, Building Judicial Integrity in China, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2684603
  24. Knut Benjamin Pissler, Höchstrichterliche Interpretationen als Mittel der Rechtsfortbildung in China (The Role of the Supreme People’s Court in Law-Making by Means of Judicial Interpretations in the People’s Republic of China), http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2700774
  25. China’s Court Provide RMB 340 Million in Living Assistance to Those Who Cannot Enforce Judgments, http://www.aaronhalegua.com/new-blog/2016/3/20/vxs3qk2k9wakt6r9k9dj95cml6bwkk
  26. Note, Chinese Common Law? Guiding Cases and Judicial Reform, http://harvardlawreview.org/2016/06/chinese-common-law-guiding-cases-and-judicial-reform/
  27. Placing Power in the Cage of Law: Judicial Independence in China, Capital University Law Review, Vol. 44, No. 2, 2016, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2776040
  28. China’s Socialist Rule of Law Reforms Under Xi Jinping

  29. Renu Rana,China’s Information Disclosure Initiative: Assessing the Reforms, China Report, May, 2015 http://chr.sagepub.com/content/51/2/129.refs
  30. Surya Deva, Socio-Economic Rights in India and China: Time for Academic Engagement between the Two Economic Giants, Socio-Economic Rights in Emerging Free Markets:  Comparative Insights from India and China, 2016 (Surya Deva, ed.)
  31. Zhang Xianchu, The New Round of Civil Law Codification in China, University of Bologna Law Review, [VOL.1:1 2016]
  32. Vivienne Bath, Overlapping Jurisdictions and the Resolution of Disputes before Chinese and Foreign Courts. In Andrea Bonomi, Gian Paolo Romano (Eds.), Yearbook of Private International Law: Volume XVII – 2015/2016, (pp. 111-150). Germany: Verlag Dr. Otto Schmidt KG.
  33. Aaron Halegua, Who Will Represent China’s Workers, US Asia Law Institute Report, supported by the Ford Foundation, https://chinaspc.files.wordpress.com/2019/11/3e688-cf6ae-haleguawhowillrepresentchina.pdf’s+Workers%3F+(2016).pdf
  34. Jerome Cohen and David Wertime, A Crack of Daylight Enters Chinese Court Proceedings, 12 October 2016, https://foreignpolicy.com/2016/10/12/a-crack-of-daylight-enters-chinese-court-proceedings-live-streaming-transparency-reform-doubts/
  35. Daniel Salisbury & Christopher Hobbs, Centers of Excellence in East Asia:Encouraging Collaborative Approaches to Nuclear Security, Policy Analysis Brief (Stanley Foundation), October, 2015.
  36. George Conk, Claims for Governmental Abuse Strengthened by China Supreme Court and Top Prosecutor, 23 May 2016, http://tortstoday.blogspot.hk/2016/05/claims-for-governmental-abuse.html
  37. China – the law of uneven development and the Supreme People’s Court, Otherwise, 2 August 2016, http://blackstonetoday.blogspot.hk/2016/08/china-law-of-uneven-development-and.html
  38. Which Chinese cases are most persuasive, 16 September 2016, https://blackstonetoday.blogspot.hk/2016/09/which-chinese-cases-are-most-persuasive.html (“The indispensable Susan Finder”)
  39. Brian Love, Christian Helmers, Markus Eberhardt, Patent Litigation in China: Protecting Rights or the Local Economy? Vanderbilt Journal of Entertainment & Technology Law, Vol. 18, p. 713, 2016, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2737034
  40. Ann E. Rutledge, Who Will Take the Lead in Shaping China’s Securitisation Market Model? SWIFT Institute Working Paper No. 2014-003, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2665975
  41. Larry Becker, Between the Judge and the Law — Judicial Independence and Authority with Chinese Characteristics,  essay first presented at the 11th Annual
    Conference of the European China Law Studies Association, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2838035
  42. Jean Christopher Mittelstaedt, Re-Uniting What Belongs Together: A Holistic Understanding of Chinese Law, Prepared for the ECLS Annual Conference September 21-23, 2016, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2841217
  43. Bjoern Ahl, The Politicization of the Chinese National Judicial Examination (2007-2012), forthcoming, Modern China, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2872473
  44. Anthony Li, Centralisation of Power in the Pursuit of Law-based Governance, China Perpectives, #2, 2016, 63-68.
  45. Cynthia Estlund, A New Deal for Chinese Workers?  Harvard University Press, 2017, 248
  46. Cecily Baskir, Mo Liqun, and Li Ao, Chinese Clinical Education: Globalizing and Localizing, Clinical Legal Education in Asia: Accessing Justice for the Underprivileged, edited Shuvro Prosun Sarker, Palgrave: 2016, 51.
  47. June Teufel Dreyer, China’s Political System (Ninth Edition), 2015)
  48. Jamie Horsley, Will Engaging China Promote Good Governance? Brookings Institution, 2017.
  49. Max Goldberg, Enclave of Ingenuity: The Plan & Promise of the Beijing Intellectual Property Court, https://elischolar.library.yale.edu/cgi/viewcontent.cgi?article=1005&context=ceas_student_work, 2017
  50. Gao Fengping, China’s Guiding Cases System as the Instrument to Improve China’s Case Guidance System, which Includes Both Guiding Cases and Typical Cases, International Journal of Legal Information, https://doi.org/10.1017/jli.2017.52, 2017
  51. Danny Friedmann, Oscillating from Safe Harbor to Liability: China’s IP Regulation and Omniscient Intermediaries, WORLD INTERMEDIARY LIABILITY MAP, MAPPING INTERMEDIARY LIABILITY TRENDS ONLINE, Oxford University Press, forthcoming, https://www.researchgate.net/publication/316991001_Oscillating_from_Safe_Harbor_to_Liability_China’s_IP_Regulation_and_Omniscient_Intermediaries
  52. “Between the Judge and the Law: Larry Backer, Judicial Independence and Authority With Chinese Characteristics, 33Connecticut Journal of International Law (1):1-41 (2017

Where the Supreme People’s Court Monitor has been cited

Since the Supreme People’s Court Monitor began almost 7  years ago, Monitor blogposts have been used as a resource in International organization publications, government reports, as well as in reports or articles and books by think tanks, legal professionals, professors, and dissertations, and students in different parts of the world.

If you have cited Susan or the Supreme People’s Monitor in your work, please add to this list by using the comment function or email.  (The list excludes citations to her 1989 article on the Administrative Litigation (Procedure) Law and her original article on the Supreme People’s Court. A partial list follows below (still being updated):

  1. 2014 Report of the Congressional-Executive Commission on China,
  2. 2015 Report of the Congressional-Executive Commission on China,
  3. China’s Environmental Protection Law: A Review,
  4. Susan Trevaskes, Creative Death Penalty Reform in China: The Case of Drug Transportation, Law & Policy, Volume 38, Issue 2, pages 143–161, April 2016
  5. Susan Trevaskes and Elisa Nesossi. Chapter 6: The Sword of Discipline and the Dagger of Justice,
  6. Judge Judith Gibson, Social Media and the Electronic “New World” of Judges, International Journal of Court Administration, 2016,
  7. Jonathan Josef Kinkel, High-End Demand: Markets for Legal Services and Pressure for Judicial Autonomy in Urban China (doctoral dissertation),
  8. Randall Peerenboom, The Future of Legal Reforms in China: A Critical Appraisal of the Decision on Comprehensively Deepening Reform,
  9. Renu Rana, China’s Information Disclosure Initiative
    Assessing the Reforms, China Report,(2015) Volume 51, Issue # 2
  10. Andrew Scott, RECENT POLITICAL AND LEGAL EFFORTS TO REFORM TRADE SECRET LAW IN CHINA,
  11. Angela Huyue Zhang, Taming the Chinese Leviathan: Is Antitrust Regulation a False Hope?, Stanford Journal of International Law, 51 Stan. J Int’l L. 195,
  12. John M.L. Gibb-Carsley, DEALING WITH THE DRAGON: WHAT SAFEGUARDS ARE REQUIRED TO MAKE AN EXTRADITION TREATY BETWEEN CANADA AND THE PEOPLE’S REPUBLIC OF CHINA CONFORM TO CANADIAN EXTRADITION LAW?, dissertation
  13. John Garrick & Yan Chang Bennett, China’s Socialist Rule of Law Reforms Under Xi Jinping (book), Routledge, 2016
  14. Cecily Baskir, Ma Liqun, & Li Ao, Chinese Clinical Legal Education: Globalizing and Localizing, Clinical Legal Education in Asia: Accessing Justice for the Underprivileged (book), ed. Shuvro Sharker, 2015
  15. Surya Deva, Preface, Socio-Economic Rights in Emerging Free Markets: Comparative Insights from India and China, ed. Surya Deva, 2015
  16. Report of Special Committee of China Affairs, 2014, Hong Kong Bar Association,
  17. Jean MITTELSTAEDT, Jean Mittelstaedt on Jerome A. Cohen, “A Looming Crisis for China’s Legal System: Talented Judges and Lawyers are Leaving the Profession, as Ideology Continues to Trump the Rule of Law” http://lcbackerblog.blogspot.hk/2016/02/jean-mittelstaedt-on-jerome-cohen.html
  18. John Garrick and Yan Chang Bennett, UUMJLS 01/2015; 6(1):1-12.
  19. Anna High, Combating Domestic Violence in China,
    Problems, Progress and Prospects, Pandora’s Box, journal of the Justice & the Law Society of the Queensland Law Society,
  20. Randall Peerenboom, The Battle Over Legal Reforms in China: Has There Been a Turn Against Law?, The Chinese Journal of Comparative Law, http://cjcl.oxfordjournals.org/content/2/2/188.full
  21.  Mahalakshmi Ganapathy, Paving the path for Rule of law in China – reform or empty rhetoric?,
  22. Daniel Rosen, Avoiding the Blind Alley, An Asia Society Policy Institute Report, 2014
  23. Fu Hualing, Building Judicial Integrity in China, 39 Hastings International and Comparative Law Review 167-182 (2016)(with acknowledgment)
  24. Knut Benjamin Pissler, Höchstrichterliche Interpretationen als Mittel der Rechtsfortbildung in China (The Role of the Supreme People’s Court in Law-Making by Means of Judicial Interpretations in the People’s Republic of China),Rabel Journal of Comparative and International Private Law (RabelsZ), Vol. 80, No. 2, pp. 372-398, April 2016
  25. Aaron Halegua, China’s Court Provide RMB 340 Million in Living Assistance to Those Who Cannot Enforce Judgments,
  26. Note (Mark Jia), Chinese Common Law? Guiding Cases and Judicial Reform, 129 Harvard Law Review 2213-2234 (2016)
  27. Caitlin E. Schultz  Placing Power in the Cage of Law: Judicial Independence in China, Capital University Law Review, Vol. 44, No. 2, 2016,
  28. Sarah Biddulph, Elisa Nesossi and Susan Trevaskes Criminal Justice Reform in the Xi Jinping Era, 2 China Law and Society Review (2017)

  29. Renu Rana, China’s Information Disclosure Initiative: Assessing the Reforms, China Report, May, 2015
  30. Surya Deva, Socio-Economic Rights in India and China: Time for Academic Engagement between the Two Economic Giants, Socio-Economic Rights in Emerging Free Markets:  Comparative Insights from India and China, 2016 (Surya Deva, ed.)
  31. Zhang Xianchu, The New Round of Civil Law Codification in China, University of Bologna Law Review, [VOL.1:1 2016]
  32. Vivienne Bath, Overlapping Jurisdictions and the Resolution of Disputes before Chinese and Foreign Courts. In Andrea Bonomi, Gian Paolo Romano (Eds.), Yearbook of Private International Law: Volume XVII – 2015/2016, (pp. 111-150). Germany: Verlag Dr. Otto Schmidt KG.
  33. Aaron Halegua, Who Will Represent China’s Workers, US Asia Law Institute Report, supported by the Ford Foundation,
  34. Jerome Cohen and David Wertime, A Crack of Daylight Enters Chinese Court Proceedings, 12 October 2016, Foreign Policy
  35. Daniel Salisbury & Christopher Hobbs, Centers of Excellence in East Asia: Encouraging Collaborative Approaches to Nuclear Security, Policy Analysis Brief (Stanley Foundation), October, 2015.
  36. Brian Love, Christian Helmers, Markus Eberhardt, Patent Litigation in China: Protecting Rights or the Local Economy? Vanderbilt Journal of Entertainment & Technology Law, Vol. 18, p. 713, 2016,
  37. Ann E. Rutledge, Who Will Take the Lead in Shaping China’s Securitisation Market Model? SWIFT Institute Working Paper No. 2014-003,
  38. Larry Backer, Between the Judge and the Law — Judicial Independence and Authority with Chinese Characteristics,  (2016) essay first presented at the 11th Annual
    Conference of the European China Law Studies Association, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2838035
  39. Jean Christopher Mittelstaedt, Re-Uniting What Belongs Together: A Holistic Understanding of Chinese Law, Prepared for the ECLS Annual Conference September 21-23, 2016,
  40. Bjoern Ahl, The Politicization of the Chinese National Judicial Examination (2007-2012),  44 Modern China208-240,
  41. Anthony Li, Centralisation of Power in the Pursuit of Law-based Governance, China Perpectives, #2, 2016, 63-68.
  42. Cynthia Estlund, A New Deal for Chinese Workers?  (book) Harvard University Press, 2017, 248
  43. Cecily Baskir, Mo Liqun, and Li Ao, Chinese Clinical Education: Globalizing and Localizing, Clinical Legal Education in Asia: Accessing Justice for the Underprivileged, edited Shuvro Prosun Sarker, Palgrave: 2016, 51.
  44. June Teufel Dreyer, China’s Political System (Ninth Edition), 2015)
  45. Jamie Horsley, Will Engaging China Promote Good Governance? Brookings Institution, 2017.
  46. Max Goldberg, Enclave of Ingenuity: The Plan & Promise of the Beijing Intellectual Property Court, 2017
  47. Gao Fengping, China’s Guiding Cases System as the Instrument to Improve China’s Case Guidance System, which Includes Both Guiding Cases and Typical Cases, International Journal of Legal Information,, 2017
  48. Danny Friedmann, Oscillating from Safe Harbor to Liability: China’s IP Regulation and Omniscient Intermediaries, WORLD INTERMEDIARY LIABILITY MAP, MAPPING INTERMEDIARY LIABILITY TRENDS ONLINE, Oxford University Press,
  49. Larry Backer, “Between the Judge and the Law: Judicial Independence and Authority With Chinese Characteristics, 33 Connecticut Journal of International Law (1):1-41 (2017)
  50. Monika Prusinowska, International Commercial Arbitration in China –State Involvement in the Pre-Award Stage:A Comparative Analysis (2018) dissertation, University of Hamburg
  51. Nathalie Lendermann, Procedure Shopping Through Hybrid Arbitration Agreements   (2018)(book)
  52. Stephan Wilske, International Commercial Courts and Arbitration — Alternatives, Substitutes or Trojan Horse?, Contemporary Asia Arbitration Journal, Vol. 11, No. 2, pp. 153-192, November 2018
  53. Bryan Mercurio, Dini Sejko, ‘Holes in the Silk: Investor Protection under China’s Belt and Road Initiative’ (2019) 14 Global Trade and Customs Journal, Issue 5, pp. 251–258
  54. United Nations Development Program (China), Issue Brief
  55. Susan Trevaskes and Elisa Nesossi, Control by Law, book chapter in Control (2017)
  56. Qi, Ding The Power of the Supreme People’s Court: Reconceptualizing Judicial Power in Contemporary China (2019)(book)
  57. Jamie Horsley, Transparency, Accountability and Access to Information, Handbook on Human Rights in China (2019)
  58. Paulina Kozanecka, Freedom of Contract in Chinese Law: The Genesis, Evolution and Current Understanding in Historical and Comparative Law Perspective (dissertation)
  59. Kathinka Fürst, Regulating through Leverage: Civil Regulation in China (dissertation, 2016, University of Amsterdam)
  60. Tao Jingzhou and Marianna Zhong, The China International Commercial Court (CICC): A New Chapter of Resolving International Commercial Disputes in China, 13 Dispute Resolution International, October, 2019
  61. Wang Shucheng, Guiding Cases and the Bureaucratization of Judicial Precedents in China, University of Pennsylvania Asian Law Review (2019)
  62. 齐玎, 最高人民法院司法解释权:释法抑或造法,  (《厦门大学法律评论》【期刊年份】 2016年 【期号】 1)
  63. Nigel Stobbs, “The Law and Policy Context of Extradition from Australia to the People’s Republic of China” [2017] VicULawJJl 6; (2017) 7(1) Victoria University Law and Justice Journal
  64. 破产法快讯,【推荐】你有一份可爱的博客需要签收, January 2, 2018
  65. Amnesty International, China’s Deadly Secrets
  66. Polly Botsford, China’s judicial reforms are no revolution, IBA Global Insight, August 10, 2016
  67. Jerome Cohen, Law and Power in China’s International Relations, New York University Journal of International Law and Politics (JILP), Vol. 52, 2019, Forthcoming

Blogposts:

  1. Mark Cohen, Delay in the Courts…To Prove this One We May Yet Need to Wait, July 26, 2019
  2. Mark Cohen, Reviewing the 2017 SPC Report on IPR Judicial Protection: The Generalities and the Exceptions, June 19, 2018
  3. Mark Cohen,  More on Guiding Cases, Precedents and Databases…, November 12, 2017
  4. Mark Cohen, Springtime for IPR Case Law in China?, March 12, 2017
  5. George Conk, Claims for Governmental Abuse Strengthened by China Supreme Court and Top Prosecutor, 23 May 2016,
  6. George Conk, China – the law of uneven development and the Supreme People’s Court, Otherwise, 2 August 2016,
  7. George Conk, Which Chinese cases are most persuasive, 16 September 2016, (“The indispensable Susan Finder”)
  8. George Conk, China’s Supreme People’s Court & Supreme Court Justice Roberts’ 2017 year report | Supreme People’s Court Monitor, Professional Responsibility: A Contemporary Approach, January 14, 2018
  9. George Conk, How China’s Supreme Court Governs: Chinese judicial documents (1) | Supreme People’s Court Monitor, May 19, 2019
  10. Herbert Smith Freehills Arbitration Notes, China proposes dedicated “Belt and Road” court, October 11, 2017 (republication)
  11. Donald Clarke, Courts and the “Absolute Leadership” of the Party (blogpost) (2019)
  12. Geert Van Calster, Fasten your (Road and) belts. China to follow example of DIFC and ICC, (blogpost), October 18, 2018
  13. Jeremy Daum, Unprecedented: Beijing IP Court’s use of ‘guiding cases’, Chinalawtranslate.com, August 31, 2016
  14. Jeremy Daum, Fourth 5-year Court Reform Plan Roadmap and Timeline, Chinalawtranslate.com, July 11, 2014
  15. Wei Changhao, NPC Observer, January 27, 2019
  16. Dan Harris, China Law Listservs, Blogs And Websites: The Harvard Law Library List, China Law Blog, November 14, 2014
  17. Peter A. Neumann, Beijing Court Rejects Jurisdictional Challenge in Investment Agreement Dispute – a Step Forward for PRC Arbitrability Jurisprudence?, Kluwer Arbitration Blog, September 14, 2019