How Zhejiang courts support its economy


My apologies to blog followers for my absence.  I will address Zhou Qiang’s comments on judicial independence in a later blogpost, for which I want to do some more detailed research than is possible at this time.

This blogpost will look at a less contentious question–what does the profile of civil and commercial disputes in Zhejiang province mean for the Zhejiang/Chinese economy and the role of the courts (in civil/commercial disputes).

Judge Zhang Hengzhu, head of the #2 civil division of the Zhejiang Higher People’s Court (High Court), spoke in early January at a conference organized by Tiantong & Partners, the boutique litigation law firm on civil and commercial disputes in his province.

What is special about Zhejiang?

The Zhejiang economy is dominated by small and medium enterprises (SMEs), many integrated with the global economy.  These companies are private, family-owned companies. Judge Zhang noted that these companies tend to have irregular corporate governance, with vague lines between property ownership by the company founder, the company, and affiliates.

Civil & commercial litigation in Zhejiang

Zhejiang (and Jiangsu) are the two most litigious provinces in China. The Zhejiang courts accepted over a million cases (1,112,900) in the first nine months of 2016, up 11% over 2015, of which over half (572,300) were civil and commercial cases, up 7% year on year.  [Comment–year-end numbers will be even higher.]

A significant proportion of those cases during that period were bad debt-related. About 17% of those cases (136,500) were private (shadow) lending disputes, involving total amounts in disputes of RMB 78.366 billion (almost USD 11.4 billion).  Private/shadow lending in Zhejiang is a supplement or replacement for bank financing. During the same period, about half as many financial disputes were accepted (85,400), up almost 20%, but the total amounts in dispute were RMB 232 billion, or USD 33.79 billion).  [Comment–year-end numbers will be even higher.]

How Zhejiang courts support SME economy

Judge Zhang commented on what the Zhejiang courts have been doing to support the province’s SME-dependent economy.  Those actions, which appear unusual those unused to the Chinese judicial system, include:

  • Taking the lead to generate judicial guidance on private (shadow) lending.  In 2009,  the High Court was the first to issue provincial level guidance. which it updated in 2013.
  • In 2013, it issued a concurrence (in the form of a meeting summary) with the provincial procuratorate and public security department on criminal law issues relating to collective fundraising.
  • The High Court is working with the provincial financial institutions on the disposal of non-performing assets.
  • It was one of the first provincial courts to take steps to generate judicial guidance on bankruptcy law and to take steps to deal with zombie enterprises (after raising it with the provincial Party secretary and government, who issued written instructions (批示)。
  • In late 2016, establishing a joint mechanism with fourteen departments of the provincial government to advance the use of bankruptcy and related issues, such as re-employment of workers, use of land formerly used by bankrupt enterprises, generating bankruptcy-favorable tax policies (document on the mechanism found here).




Updated data on Chinese bankruptcy law


Senior Shanghai Maritime Court judges participating in video conference 

Senior Judge Du Wanhua, tasked with making Chinese bankruptcy and corporate restructuring law work better (see these earlier blogposts), spoke recently on a video conference held by the Chinese courts, where he released a few points of big data on Chinese bankruptcy law and highlighted (in this version) current and forthcoming court policy on bankruptcy.  The data he released can be expected to be part of the conversation when the 21st US-China [or China-US, depending on your perspective] Legal Exchange takes place in Beijing and Shanghai on 13 and 15 December 2016 on bankruptcy law.

The video conference concerned one of the vexed issues of Chinese bankruptcy law, how to transfer cases from enforcement to bankruptcy proceedings, but Du Wanhua’s talking points as released were more general. Some of his points are highlighted below.

Updated data on bankruptcy cases

The Chinese courts have accepted 3463 bankruptcy cases through October of this year, up almost 30% year on year, of which 2249 have been closed, up almost 60%.  At the same time, the business registration authorities (the State Administration of Industry and Commerce (SAIC) and local counterparts), have cancelled the registration of 396,000 companies.

Transitioning from enforcement to bankruptcy procedures

Judge Du revealed that close to half (40-50%) of the unsatisfied enforcement cases  are ones that are wholly unsatisfied, with a goodly portion involving corporate judgment debtors. (As mentioned in earlier blogposts, there is no procedure to transfer cases from enforcement procedures to bankruptcy). Judge Du mentioned that the SPC had already drafted guidance which have been discussed by the SPC’s Judicial Committee and would be issued soon. He noted that unsatisfied judgments because of local protectionism have led to conflicts between creditors and  “fierce” conflicts between courts. He called for courts not to engage in “buck passing” on enforcement cases that are transferred to another court for bankruptcy procedures.

Establish coordination system for bankruptcy cases

Echoing themes in earlier statements by Judge Du and others in the Chinese courts, he calls for localities to establish a unified coordination mechanism for enterprise bankruptcy work, with government and courts, under Party Committee leadership, to plan state asset protection, safeguarding of financial safety, resettlement and reemployment of workers, and for the bankruptcy of non-state owned enterprises to proceed smoothly.

Will this coordination system improve matters?  The jury is still out.


Supreme People’s Court’s new bankruptcy information platform

Screen Shot 2016-08-06 at 12.12.56 PMOn 1 August, President Zhou Qiang of the Supreme People’s Court (SPC) inaugurated the SPC’s new enterprise bankruptcy and reorganization electronic information platform, linked here and accessible through the Supreme People’s Court’s website (  The English title and slogans could have benefited from a 5-minute consultation with a native speaker, but more importantly, some of the functions still appear to be in Beta mode.  The platform has three parts.

It provides information for the public on:

  • Debtors (债务人信息). :

 This function seems to be in Beta mode because when you click further for more details,Screen Shot 2016-08-07 at 9.03.31 AMno further information is available.  This section is intended to provide the most recent annual report, related litigation, and information on assets of the company from the industrial and commercial authorities’ database and enable “one-stop shopping” for distressed assets.

Bankruptcy notices, such as this one with a plan on the distribution of the assets of a Xinjiang tomato processing company;

  • Bankruptcy rulings made by the local courts, such as this one by the Qidong (Jiangsu) court on accepting the bankruptcy case of a Nantong marine engineering company;
  • Laws and regulations (primarily SPC regulations related to bankruptcy);
  • Bankruptcy related news, primarily reports on new regulations issued and bankruptcy-related initiatives or conferences, such as this one in Zhejiang, on the crisis in Zhejiang’s ship-building industry);
  • Typical (model) bankruptcy and liquidation cases (see an explanation of typical/mode cases here), so far just a re-publication of the typical cases that the SPC issued in June.

Second, bankruptcy administrators are required by these regulations to upload information to issue to parties to the bankruptcy.

Third, judges are required to upload their bankruptcy/liquidation rulings to this platform.

For parties, the platform enables them to have current information on the status of their cases and upload documents to submit to the court or bankruptcy administrator.

The SPC issued regulations on the operation of the platform in late July, available here. It seems likely that the SPC considered the bankruptcy platform of other major jurisdictions in the process.  This platform is part of the SPC’s Internet Plus/smart courts policy to provide greater transparency, easier access to information, and “greater informatization,” for some of the reasons described in this short article–particularly having tangible results and promoting the use of information technology.

For anyone seeking to drill down into the details of how bankruptcy and liquidation law is being implemented in China’s political and economic environment, and particularly for lawyers and others doing due diligence and distressed asset investors (domestic or foreign), the platform is unquestionably very useful.





Chinese courts recruiting more bankruptcy forces

imgres-1The Supreme People’s Court (SPC) recently issued a notice  (notice concerning the plan for establishing liquidation and bankruptcy trial divisions in intermediate courts)(bankruptcy division notice) (关于在中级人民法院设立清算与破产审判庭的工作方案) aimed at establishing liquidation and bankruptcy trial divisions in China’s intermediate courts and increasing the number of judges and support staff focusing on liquidation (winding up companies not in bankruptcy) and bankruptcy-related issues, to implement the central leadership decision to use bankruptcy law to reduce the number of zombie enterprises.

SPC Judge Du Wanhua had foreshadowed this development in many previous statements. The SPC required the concurrence of the Central Staffing Commission, a Party-State organization that regulates staffing in Party and state entities. A summary of the bankruptcy division notice follows below:

  • Establish bankruptcy divisions in intermediate courts, with some courts taking the lead;

In the directly administered cities, at least one intermediate court should establish a bankruptcy division, intermediate courts in provincial capitals and cities of deputy provincial level also. At lower levels, it will depend on economic development, local need, and professional infrastructure, with provincial courts to make arrangements with staffing authorities.

The following locations will take the lead in establishing bankruptcy divisions: Beijing, Shanghai, Tianjin, Chongqing; and the provincial capitals (and cities of deputy provincial level) of Jilin, Jiangsu, Zhejiang, Anhui, Shandong, Henan, Hubei, Hunan, Guangdong, and Sichuan. These arrangements are to be put in place by the end of July, with the other areas to follow by year end. This blog has reported on previous bankruptcy developments in Jiangsu,  Zhejiang, Anhui, Shandong, and Guangdong.

  • Sets out the work of  bankruptcy divisions;

Try compulsory liquidation and bankruptcy cases, guide lower courts trying these types of cases; coordinate with other courts on these issues; manage and train bankruptcy administrators.

  • Describes the jurisdiction of the bankruptcy divisions;

Intermediate courts should be responsible for the compulsory liquidation and bankruptcy of companies registered at the business registration authorities (administration of industry and commerce) of its own level and below, with variations possible if the provincial high court approves.

  • Staffing principles

Staffing should be according to judicial reform principles and linked to the caseload–the judges should be those familiar with liquidation and bankruptcy from the same or lower courts and they should have a clerk and judicial assistance on a 1:1:1 principle.

  • Measures needed

Improved measures are needed to supervise and evaluate liquidation and bankruptcy work; expedited liquidation and bankruptcy procedures need to be explored; promote reforms in trying liquidation and bankruptcy cases; put in place judicial responsibility (this relates to the judicial lifetime responsibility system announced in September, 2015) to ensure an honest judiciary.

  • Coordinate better with local Party/state authorities

Liquidation and bankruptcy divisions should report regularly to the local Party committee/government to seek their support and major issues should be reported to the SPC.

Some thoughts

This is a positive step although it cannot deal with the underlying political issues related to implementing bankruptcy law in China, particularly local government interference in bankruptcy cases.  Putting in place more qualified judges and support staff is a critical part of making bankruptcy law work.  The political support of the local authorities remains critical and the local judiciary provides a training and liaison function. The bureaucratic level of a troubled company (state owned enterprise) affects the ability of a court to deal its issues.

Academics reaching out beyond the universities and social media is playing a positive role in creating a corp of more competent bankruptcy specialists in the judiciary.  The Bankruptcy Law and Restructuring Research Center of the China University of Political Science and Law, directed by Professor Li Shuguang  has established a Wechat public account, which provides bankruptcy and liquidated news to the profession, including judges, as well chat groups in which Chinese bankruptcy professionals can share their experiences and tap into the experience and knowledge of others.



Ramping up China’s bankruptcy courts, the latest data

imgres-1Judging from what I observed at a conference attended by many from the distressed asset industry in Asia recently, information on what the Supreme People’s Court (SPC) is doing to ramp up bankruptcy law has not made it to distressed asset/restructuring professionals outside of China, some of whom seem to think that policy emerges fully formed from Beijing.

This blogpost shows that bankruptcy policy is in fact an evolving process, provides some new data on 2015 and 2016 cases, and summarizes the latest policy signals coming from the Supreme People’s Court in recent months.

As the first chart shows, the number of companies established in China is steadily rising Since the Chinese Company Law was amended at the end of 2013, it has been much easier to establish a company.  According to the SPC, since those reforms, an average over 10,000 new companies are established daily, but less than 70% remain in business after 5 years, and less than 50% remain in business after 9 years.  Most companies simply deregister, or live on as zombies, as the following charts show:


companies established yearly, in units of 10,000


cancellation of company registration

As reported earlier (and the chart below shoes), the number of bankruptcy cases has gone steadily down until 2015:


Full year statistics for 2015 were recently released by the Supreme People’s Court–3568 new bankruptcy cases were accepted.  It is linked to the SPC ramping up bankruptcy law. Some local breakdowns:

Zhejiang:  638

Shenzhen: 131, accounting for 40% of cases in Guangdong.

Numbers for 2016:

  • January, 2016: 167.  This article lists the names of the cases;
  • February, 2016: 101, breakdown found here.
  • March, 2016: 127, breakdown found here
  • April, 2016: 153 (breakdown found here)

Following the 5th Plenum the end of 2015, the SPC has taken steps to promote the role of the courts in eliminating zombie enterprises. This was first announced at a national court conference in December, 2015 (reported here).  This is bankruptcy (insolvency) in the Chinese political and legal environment, which means extensive government involvement.

Certain local courts are taking the lead as pilot bankruptcy courts:

  • Zhejiang;
  • Shandong; and
  • Shenzhen.

Executive Vice President Du Wanhua of the SPC is the spokesman for bankruptcy policy, and in his many press statements is making the same points:

  • The courts should promote more bankruptcy reorganization and conciliation, and diminish liquidation cases (a contrast to what has occurred in recent years).  (The SPC has promoted this approach through recent reports promoting reorganizations by the courts and is continuing to promote this in its pronouncements. Local governments are adopting policies to promote reorganization of companies.)
  • A market-oriented mechanism should be established which classifies zombie enterprises.  The mechanism should distinguish ones than can be saved through restructuring or conciliation procedures from the ones that should be liquidated.  The classification should fulfil the industrial development goals, targets, and other principles of the central government.  (But, Professor Liu Zhibiao, a leading economist suggested in a recent interview that it should the market to determine this, not government.)
  • A unified coordination mechanism for bankrupt enterprises needs to be created under the local Party committee’s strong leadership and support of the relevant government departments to ensure cases are handled in an orderly manner. To avoid this “strong leadership” being implemented to protect local companies ( a study published in the fall of 2015, Ma Jian of the SPC’s research office showed that local government interference in the acceptance, and trial of bankruptcy cases is common), Judge Du proposes that jurisdiction in bankruptcy cases be consolidated in certain courts
  • The rights and interests of the state, workers, creditors, and investors should be protected (in this order).
  • A corporate restructuring bankruptcy information platform mechanism that uses modern information technology tools should be created to promote the greatest degree of success of corporate restructuring, and better use of economic resources.
  • Orderly mechanisms should be established to deal with wages, state tax, and the priority and realization of secured claims, unsecured claims.
  • Local courts should establish bankruptcy divisions and provide bankruptcy judges with better bankruptcy law training;
  • Procedures for bankruptcy administrators should be drafted and their status should be improved;
  • Special funds should be established to pay for bankruptcies and bankruptcy administrators;
  • Local governments, such as Guangdong, are starting to issue policy programs on “supply-side reforms.” The Guangdong program, issued on 28 February, contains a section on bankruptcy. The Guangdong policies mention separate databases for bankrupt state-owned and non state owned enterprises, mentioning that special policies would be forthcoming for state owned enterprises (SOEs) and that courts would be given the “green light” to deal with the bankruptcy of zombie companies. Reflecting policies seen elsewhere, the Guangdong government is seeking to encourage private enterprises to assist in re-organizing SOE zombies and is considering establishing special funds to assist companies to upgrade.
  • One of the industries that is a focus of bankruptcy is real estate.  While Shenzhen, Shanghai, and some other real estate markets are doing well, that is not the case in other locations, as discussed in this earlier blogpost.

Some of the outstanding legal policy issues:

  • Putting in place a better transition from enforcement to bankruptcy procedures (Zhejiang rules recently issued linked here);
  • Consolidating jurisdiction of bankruptcy cases;
  • Consolidating the bankruptcy of related companies;
  • Familiarizing the market with bankruptcy law;
  • Improving the regulatory structure for bankruptcy administrators (Zhejiang leading the way, see these May, 2016 regulations).

Other bankruptcy related political/economic issues:

  • Dealing with the large state-owned money losing companies (this article lists 16, but says that they are not likely to be left to market forces); and
  • Stealth unemployment of SOEs.

One of the points made at the conference is that China does not need ideas from abroad.  If that were true, there would not be so many Chinese articles on bankruptcy law reform, including by Judge Du, discussing the UNCITRAL Model Law Cross-Border Insolvency and bankruptcy law in other jurisdictions, including the United States.

Another major issue and difficult issue is cross-border insolvencies, both in situations where the offshore parent goes into bankruptcy and when a Chinese company with offshore subsidiaries goes into bankruptcy. The first situation now happens regularly, creating difficulties and uncertainties for the insolvency/bankruptcy administrator of the offshore parent as well as for creditors. The second we will see some some time in the future, when some of the over-leveraged companies that have invested abroad go into bankruptcy.



Data on medical malpractice, pollution, & product liability cases from Supreme People’s Court

Screen Shot 2016-03-28 at 7.19.28 PMThis blogpost continues the analysis of data from the SPC on civil cases–traffic accidents, medical malpractice, product liability, and environmental claims.

Traffic accidents

Traffic accident cases totalled about 889,000, up 11%.  China has a very high number of fatalities and injuries in road accidents, with road accidents a leading cause of death. Reasons that local court posit for the large number and increase in cases:


Medical malpractice

Medical malpractice cases continue to rise year on year, with this year’s increase over 16%.Law on medical malpractice is generally recognized to be inadequate.  Chinese patients (and families) are increasingly aware that litigation may result in a more favorable outcome than other methods. This may (or may not change) when regulations on the prevention and handling of medical disputes are finalized.  A draft was issued for public consultation late in 2015. The SPC participated in the drafting.  As has been reported and analyzed in a variety of publications, patients and their families often feel that the system favors medical institutions, and sometimes resort to violence, but increasingly to courts.  As mentioned last year:

  • the SP is working on new ways of trying medical malpractice cases;
  • high on its priority  is more detailed rules on the burden of proof and the standard of proof in medical malpractice cases (the new interpretation of the civil procedure law does not add significant details on this, leaving earlier rules in place);
  • the concept is to strike a balance between protecting the interests of the patients and enabling normal operation of medical institutions.

The Chinese government is seeking more foreign involvement in the medical sector.  Foreign investors contemplating establishing hospitals or clinics should be aware that their tort liability is likely to expand in the near term future.

Product Liability Claims

Product liability cases totalled 21, 828, up over 100%, accounting for a tiny fraction of disgruntled customers.  These can be expected to rise even further when the SPC issues public interest consumer litigation regulations, which it is now drafting.  A Shanghai lawyer recently noted that so few consumers resort to litigation because it is not worth the expense.  This is another area for counsel for foreign investors in China and those selling into China to monitor. It is unclear whether the SPC will solicit the public on its draft, as it did for environmental public interest litigation.  It is an area in which the legal committees of  foreign chambers of commerce should make their views known to the SPC.

Environmental litigation

Environmental tort claims totalled totalled 2370, down 15%, despite widespread pollution problems and efforts by the SPC: a judicial interpretation on environmental tort liability and the establishment of environmental divisions within local courts.  Reasons cited in the official media include the complexities of the cases, including proof of causation, and the lack of organizations that can provide evaluations needed by the court.  Another issue to complicate implementing China’s polluter pays principle in the increasing number of polluters that close up.


Data from the Supreme People’s Court on real estate disputes

Screen Shot 2016-03-26 at 3.46.14 PM

Pie chart of real estate investment disputes

Yu Yongding, Academician of the Chinese Academy of Sciences, writing in early March, indirectly predicts a continued growth in real estate disputes.

Clearly, China has gone too far in real estate development… By the end of 2015, the unsold house floor space for the country as a whole was 700 million square meters… Facing a double-digit growth in inventory, naturally, real estate developers cut their investment deeply. At the moment, the growth rate of real estate investment has dropped to almost zero. Without stretching the imagination, one can be sure that in 2016 growth of real estate investment will enter into negative territory.

Because the economics on which the participants in real estate development deals has changed greatly, that has meant a major increase in real estate disputes in 2015.

In 2016, as an earlier blogpost flagged, the Supreme People’s Court (SPC) is monitoring real estate disputes closely, because of their link with the government’s economic policy, social stability, and links with other parts of the economy. As Yu wrote, “real estate investment accounts for a fourth of the total investment. For a long period of time, real estate has been the most profitable area of investment in China.”

As set out in the earlier blogpost, in 2015, the SPC leadership identified the following problems in real estate development cases:

  • developers suing to invalidate grant contracts (under which they purchase land for development) and seek the return of the land grant fees (upon which local governments depend);
  • Developers who are short of funds and unable to hand over properties on time;
  • Declines in property prices causing “mass incidents.”
  • Cases involving real estate development and private lending, including illegal fundraising;
  • Many cases involving unpaid migrant construction workers.

According to the “big data” that the SPC recently released, in 2015, the number of cases in all categories related to real estate development rose sharply:

  • newly accepted grant contract disputes, 1368, up almost 21%.  A quick search of the SPC’s case database reveals that some of these cases have been heard in the first instance in provincial higher people’s courts and on appeal in the SPC, because of the large amounts in disputes.
  • disputes involving the sale (by developers) of real estate, 172,372 cases, up 42.29%.  Cases are up substantially in provincial cities, such as Liuzhou, Guangxi province and Zhaoqing, Guangdong, where the number of cases in the first half of 2015 were almost as much as the total for the year before.  Analysis by Zhaoqing judges of the cases revealed a laundry list of problems, such as poor government oversight of developers (because local government is desperate for investment); developers pre-selling real estate development projects although their rights to the land are in dispute; poor quality building,  misleading sales advertising, and cases involving large numbers of litigants.
  • joint venture real estate development cases, 1946, up 20%.  These refer to domestic joint venture cases, when one company provides the funding and the other the land.  Some cases involve deals between state-owned companies from different provinces, with the out of town party often trying to move the case to a more favorable venue ;
  • disputes involving compensation for demolished housing, 24,871 cases, by 33% (despite legal obstacles to bringing these cases) .(For those who understand Chinese, the Xuzhou (Jiangsu) courts have posted this video of proceedings in one such case).
  • Other types of real estate development cases, 33,605, up by 49%.

These cases (and related “mass incidents”) may be expected to rise in 2016.  Litigators with real estate expertise can be expected to be very busy.

Related to this, the SPC also expects an increase in real estate development companies going into bankruptcy.  It is for that reason that this month, one of the SPC journals has published an article by two Jiangsu High Court judges on priority in bankruptcy of real estate development companies.