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Supreme People’s Court Biweekly Developments: September 2025

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This post highlights judicial interpretations, policy documents, and guiding or typical cases issued since the middle of September (2025).

  1. Judicial interpretations and policy or other judicial documents

For an explanation of judicial interpretations, see this post; for an explanation of policy documents, see these posts or my 2024 article.

 

Title Type Analysis
Supreme People’s Court Interpretation on Some Issues Related to the Application of the PRC Company Law《最高人民法院关于适用〈中华人民共和国公司法〉若干问题的解释（征求意见稿）》, issued evening of 30 September, open for comment until 20 October Judicial interpretation (draft) Draft interpretation has 90 articles, not yet aware of translation or analysis in English.  SPC has “already engaged in extensive preliminary research and preliminary consultation with experts, scholars, and relevant departments.”  Provisions include ones related to liquidation and dissolution of companies; disregarding legal personality of related companies; 10 draft provisions related to listed companies, including VAM agreements.  This article comments on the General Provisions, more to come.
Opinions On Promoting the High-Quality Development of the International Commercial Court
and Serving and Ensuring High-Level Opening Up, Issued 25 September (关于推进国际商事法庭高质量发展
服务保障高水平对外开放的意见) link is to text & press release		 Policy document

Also known as a “judicial document” ( 司法文件) or “judicial normative

document” (司法规范性文件), “judicial

policy document” or “judicial regulatory documents” 司法政策性文件).

 Not yet aware of analysis in English, see quasi-official analysis on the WeChat public account of the SPC’s #4 Civil Division. My own analysis is forthcoming. Provisions include promoting the use of international commercial courts; standardizing translations; further provisions on parallel proceedings; etc.  China Daily report here
Notice on Issuing Matters Concerning the Jurisdiction of First-Instance Civil and Administrative Intellectual Property Cases by Basic-Level People’s Courts 最高人民法院
关于印发基层人民法院管辖第一审知识产权民事、行政案件有关事项的通知In effect from 1 October		 Judicial normative document Not yet aware of analysis in English; the notice designates courts to hear civil and administrative intellectual property cases in the first instance. Note that many courts have limited jurisdiction in civil cases, depending on the amount in dispute. This could be seen as an assessment of the quality of that court. Shanghai and Beijing courts do not have amount in dispute limitations
 

Title Type Analysis
Supreme People’s Court Interpretation on Some Issues Related to the Application of the PRC Company Law《最高人民法院关于适用〈中华人民共和国公司法〉若干问题的解释（征求意见稿）》, issued evening of 30 September, open for comment until 20 October Judicial interpretation (draft) Draft interpretation has 90 articles, not yet aware of translation or analysis in English.  SPC has “already engaged in extensive preliminary research and preliminary consultation with experts, scholars, and relevant departments.”  Provisions include ones related to liquidation and dissolution of companies; disregarding legal personality of related companies; 10 draft provisions related to listed companies, including VAM agreements
On Promoting the High-Quality Development of the International Commercial Court
Opinions on Serving and Ensuring High-Level Opening UpIssued 25 September (关于推进国际商事法庭高质量发展
服务保障高水平对外开放的意见) link is to text & press release		 Policy document

Also known as a “judicial document” ( 司法文件) or “judicial normative

document” (司法规范性文件), “judicial

policy document” or “judicial regulatory documents” 司法政策性文件).

 Not yet aware of analysis in English, see quasi-official analysis on the WeChat public account of the SPC’s #4 Civil Division. My own analysis is forthcoming. Provisions include promoting the use of international commercial courts; standardizing translations; further provisions on parallel proceedings; etc.  China Daily report here
Notice on Issuing Matters Concerning the Jurisdiction of First-Instance Civil and Administrative Intellectual Property Cases by Basic-Level People’s Courts 最高人民法院
关于印发基层人民法院管辖第一审知识产权民事、行政案件有关事项的通知In effect from 1 October		 Judicial normative document Not yet aware of analysis in English; the notice designates courts to hear civil and administrative intellectual property cases in the first instance

2.  Typical (典型 example, exemplary, model) cases

For an explanation of typical (model, exemplary, example) cases, see these posts.

Title Type Analysis
Ninth Batch of Cases on the Construction of People’s Tribunals in the New Era (2)新时代人民法庭建设案例（九） Typical cases Subtitle is “Building Fengqiao-style People’s Courts and Strengthening the Guidance of Professional and Industry-Specific Mediation Functions”—related to resolving enterprise-related and labor-related disputes [providing insights into SPC policies on the role of the local courts]
The Supreme People’s Court and the Ministry of Justice jointly issued typical cases on standardizing enterprise-related law enforcement, judicial administrative reconsideration, and administrative litigation最高人民法院、司法部联合发布规范涉企执法司法行政复议、行政诉讼典型案例 Typical cases Cases have multiple targets: promoting the  “Private Economy Promotion Law”, special actions to standardize administrative law enforcement and judicial work involving enterprises, administrative reconsideration and administrative litigation in serving high quality economic and social development
Fifth batch of typical cases involving the construction of the “Belt and Road”第五批涉“一带一路”建设典型案例 Typical cases See my earlier comments on Belt & Road typical cases; SPC states its hope that the cases not only provide exemplary guidance for the Chinese courts, but also provide regulatory guidance for the joint construction of the Belt and Road Initiative with the wisdom of Chinese judicial practice, injecting new legal momentum into promoting a fairer, more open, and more inclusive new international economic order; my own commentary forthcoming

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I’m focusing on preparing a long article for publication and several other long writing projects, therefore this abbreviated post.

alternative dispute resolution, bankruptcy, bankruptcy law, BRI, case database, Case law, Communist Party and the Courts, foreign-related cases, NPC, Role of the Supreme People's Court

What’s New in the 2024 Supreme People’s Court report to the National People’s Congress?

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Susan Finder and Zhu Xinyue

I. Overview of the 2023 SPC Work Report

Supreme People’s Court (SPC) Work Reports to the National People’s Congress (NPC) appear to the casual reader as much of a muchness. Like all official work reports, it provides a perfectly positioned overview of the previous year’s accomplishments and a high-level summary of 2024 work priorities.

To the attentive reader,  the March 2024 SPC Work Report to the NPC  (2024 SPC Work Report or Report) signals something new and different compared to its predecessor reports.  This much-delayed blogpost flags only some of what is new.  I have italicized many of my comments. (Please contact me if I have not mentioned your area of interest.)

The 2024 SPC Work Report signals that since President Zhang Jun took office, he has vigorously implemented new policies and set new priorities. Accordingly, the Report highlights Zhang Jun era keywords. Conveniently for the reader, they are contained in this single report.  A single phrase or sentence in this report links to one or more SPC documents, initiatives, and guiding/typical cases.

As in previous years, local court cases or innovations are considered accomplishments and heralded on local court WeChat accounts. Last year’s report, in contrast, was President Zhou Qiang’s last and served as an official summary of his accomplishments over the previous five years.

Several phrases in the first paragraph of  the 2024 Work Report (bolded) signal the new themes in this report:

… by focusing on the working theme of “justice and efficiency”, insisting on active justice, deepening and realizing service for the overall situation and justice for the people, we have made solid progress in promoting the modernization of judicial work聚焦“公正与效率”工作主题，坚持能动司法，做深做实为大局服务、为人民司法，推动审判工作现代化迈出坚实步伐…

As the regular reader of this blog could predict, the word “active ( 能动)” and the watchword or keyword  “active justice (能动司法)  can be found throughout the report.

Some statistics

The initial section of the 2024 SPC  Work Report provides overall statistics from the SPC and the entire court system.  The SPC accepted 21,081 cases and concluded 17,855 cases, representing a year-on-year increase of 54.6% and 29.5%, respectively. These numbers reflect the end of the pilot project to reorient the four levels of the Chinese courts and the corresponding increase in retrial applications made to the SPC. It can be anticipated that those numbers will be even higher in the 2024 calendar year. As I have previously written, most of the civil and administrative retrial applications to the SPC are unsuccessful, but it requires SPC judicial time to review them. For Americans, a useful but not entirely appropriate analogy is the petition for certiorari to the Supreme Court.

The report states that courts at all levels accepted 45.574 million cases and concluded 45.268 million cases, with 15.6% and 13.4% yearly increases, respectively.  Most cases in Chinese courts are civil/commercial (60.05%) or enforcement cases (29.34%).  I would be grateful if a reader could provide comparative statistics (from other jurisdictions) on enforcement.  My reaction is that the proportion of enforcement cases is relatively large. See the chart below:

These numbers likely are linked to the poor economy, which from comments by friends in the court system, means an increase in business disputes and business-related crime.  These increases are evident despite policies to reduce the number of disputes entering the courts and resolve cases filed before they reach the hearing stage. Those policies include: resolving cases at their source, resolving others through mediation, (now promoted under the keyword/title of Fengqiao Experience),  and promoting arbitration.  Some judges have remarked privately that it also has to do with the low cost of litigation.

II.  Serve the overall situation effectively and ensure high-quality development and high-level security with active justice

The title of this section combines several watchwords/keywords 提法/关键词, robustly signaling that President Zhang Jun led the drafting of this report.

The ten subsections in this section must be understood as ones that were priority areas for the Chinese courts in 2023. I have selected only a few of the subsections out of the ten:

Assisting the Strengthening of the Construction of the Financial Rule of Law

This subsection in the 2024 SPC Work Report is positioned immediately after the sections on safeguarding national security and social stability, promoting public security governance, and fighting corruption, reflecting its priorities in the SPC’s work. Although both the 2023 and 2024 SPC Work Reports address judicial support for finance, the 2024 SPC Work Report emphasizes strict regulatory enforcement in the banking and securities sectors, both subsumed under the category“financial trials.”

The Chinese courts concluded 3.032 million financial cases, an 8% year-on-year increase, and heard 861 money-laundering cases, involving 1,019 individuals, with increases of 23.5% and 22.2%, respectively. The money-laundering cases are likely linked to the ongoing multi-institutional anti-money-laundering campaign of which the SPC is a participating institution. The Report stresses the importance of “compliance in financial activities, strict punishment for senior management illegalities (高管违法要严罚), and holding intermediaries accountable for negligence.” The report illustrated the last two policies by mentioning a securities false statement case in which senior managers were found liable and an intermediary bore 20% joint and several liability.  Given those signals, it will not be surprising that the Shanghai, Beijing, and Chengdu-Chongqing Financial Courts have made analogous judgments in 2023 and 2024. The allocation of liability in these cases is a current issue. The Report also mentioned two financial law-related judicial suggestions that the SPC issued, rarely, if ever mentioned in the past, linked to last year’s judicial interpretation on judicial suggestions/advice (司法建议).

 Promoting the Development and Growth of the Private Economy in Accordance with Law

This subsection, new in comparison with last year’s report, links to the July 2023 Central Committee and State Council document on promoting the private economy,  focusing on measures contained in a September 2023  policy document and typical cases.  It includes a paragraph discussing the measures in that policy document and highlighting that the courts heard 42 cases of property rights-related wrongful convictions.  The SPC issued 12 typical retrial  cases (civil, criminal, and administrative) involving the rights of private enterprises and private entrepreneurs. Cases of bribery and embezzlement involving non-state employees amounted to 6,779, involving 8,124 individuals, with a year-on-year increase of 26.6%. Although the SPC intends to enhance legal certainty, boosting business confidence and stabilizing expectations, other sources report on profit-oriented law enforcement at the local level, often leading to the jailing of private entrepreneurs and the confiscation of their assets.

III   Safeguarding and Enhancing People’s Livelihood through  Active Justice

The section title above replaces “The Path of Judicial Services for the People With Chinese Characteristics” in the 2023 report.

New themes introduced include “Supporting Guaranteed Delivery of Commercial Housing and Stable Livelihoods,” to deal with issues related to the ongoing crisis involving real estate developers.

  • Safeguarding Housing Rights: The financial collapse of many real estate developers has meant disputes along the real estate development supply chain. A 2023 SPC judicial interpretation prioritizes homebuyer rights, clarifying the order of claim repayment in disputes over unsuccessful delivery of sold commercial housing.
  • Strengthening Housing Pre-sale Supervision: The SPC issued Judicial Suggestion No. 1 to promote contract online signing and pre-registration, enhance pre-sale funds supervision for commercial housing, strengthen pre-sale information inquiries, and warn about home buying risks.  [These suggestions do not seem to have been made public.]
  • Restructuring the Financial Chain of Homebuying: In response to a financial chain rupture of a private real estate enterprise in Hunan Province, a court-facilitated restructuring revitalized 16.8 billion yuan, resolving housing delivery issues for 16,000 households by facilitating the merger and restructuring of 13 related companies.  This type of case was mentioned in a typical case that the SPC issued last year.

IV. Promoting National and Social Governance through Active Justice Which Practically Grasps the Front End and Treats the Disease Before it’s too Late 

As could be anticipated, this section emphasizes judicial suggestions, among other matters.

Deepening the Effective Use of Judicial Suggestions: The Report emphasized judicial suggestions that fill legal gaps and governance deficiencies, mentioning the regulations on comprehensive governance-oriented judicial suggestions, discussed here. This is yet another initiative emphasized by President Zhang Jun. The SPC led with Judicial Suggestions No. 1 to No. 5, and lower courts issued 9,429 suggestions.

V. Ensuring Judicial Justice through Actively Performing Duties 

This section underscores Party leadership within the judicial system, with the primacy of the Party’s political construction. It promotes “strengthening Party nature, emphasizing practical work, and achieving new accomplishments” (“强党性、重实践、建新功”) through solid “learning of ideology” (扎扎实实“学思想”) and outlines the result of “deepening investigation and research and solidifying thematic education”( 大兴调查研究，让主题教育走深走实) and implementing “investigation promoting case handling, and case handling also being investigation” (“调研促进办案、办案也是调研”).

The Report indirectly addresses public concerns about the China Judgements Online database by emphasizing efforts to improve transparency in judicial proceedings (裁判文书上网) and the “People’s Court Case Database”,  such as posting 2.165 million documents online in 2023, with a year-on-year increase of 111.6%, covering a wider range of trial areas and case types, with the SPC and higher courts posting 35,000 documents, a 370% increase. The 2024 Report details measures for the uniform application of legal standards, including 15 judicial interpretations, 13 guiding cases, and 610 typical cases. As discussed here, the “People’s Court Case Database” contains SPC-approved cases, and judges must search this database.   “Legal Response Network (法答网)” (analysis to come) launched on July 1, 2023, facilitates communication among courts and has received 280,000 legal application inquiries, answering 230,000. Insights from this platform have led to the revision or drafting of 27 judicial interpretations and regulatory documents.

More specific selected statistics

Bankruptcy cases: 29,000 bankruptcy cases were concluded, marking a year-on-year increase of 68.8%. Additionally, 1,485 bankruptcy restructuring and settlement cases were concluded. Local court white papers on bankruptcy (link is to the Shanghai court white paper) are an undervalued source of insights on more specific bankruptcy trends, such as the type of companies going bankrupt and the length the companies have been in business. One law firm report on bankruptcy flagged missingness on the SPC’s bankruptcy platform and the rate at which local courts accepted bankruptcy cases.

Foreign-related civil and commercial cases: 24,000 foreign-related civil and commercial cases and 16,000 maritime cases were concluded, representing annual increases of 3.6% and 5.3%. The average trial time decreases by nearly 10 days. 16,000 cases of judicial review of commercial arbitration were concluded, reflecting a 5% year-on-year increase. During this period, 552 arbitration awards were revoked, remaining stable year-on-year, while 69 foreign arbitration awards were recognized and enforced, representing a 16.9% increase. This section mentions a Shanghai Financial Court case in which the court stopped payment on a demand guarantee, although in fact most of such lawsuits are unsuccessful.

Deepening the diversification of dispute resolution: Since 2013, court cases have increased by an average annual rate of 13%, doubling over 10 years. Judges handled an average of 357 cases annually in 2023, up from 187 in 2017.  The courts successfully mediated 11.998 million disputes through people’s mediation, administrative mediation, and industry-specific mediation organizations/institutions, representing a 32% increase year-on-year and accounting for 40.2% of the total civil and administrative cases filed.

Fully leveraging the role of scientific evaluation as a “command baton”: The annual case closure rate was adjusted to the closure rate within the trial period, which reached 97.7% last year, a 2 percentage point increase. A special case cleanup initiative concluded 1,914 lawsuits pending for over three years and 2,455 pending cases involving 6,909 individuals, accounting for 81.3% and 86.8%, respectively, of the total cases.  The title of this section is significant. Judges at all levels of courts feel that “command baton.”

VI. 2024 Work Targets

As readers of this blog could anticipate, the 2024 work arrangements of the courts are focused on the modernization of judicial work, active justice, and other 2023 top keywords. The work arrangements listed here are more general than the types of work plans mentioned in my article.  They are intended to signal to the NPC and general public the overall direction of the SPC’s work in the current year. For the most part, the arrangements are expressed in phrases or single sentences.

Criminal cases: Implement the holistic national security concept, severely punish crimes threatening national security and public safety, promote the normalization of crackdowns on gangs and evil [sometimes used against local entrepreneurs], and severely crack down on telecommunications network fraud, cross-border gambling, and corruption, with harsher punishment for bribery crimes. All if not most of these crimes were flagged during January’s annual Central Political-Legal Work Conference.

Intellectual property and digital rights: Strictly protect intellectual property rights and promote their transformation and application, and serve the development of new productive forces. Justice Tao Kaiyuan published an article in People’s Daily in late March explicating the link between the development of new productive forces and the improvement of intellectual property rights protection. Strengthen personal information protection and improve digital rights protection rules. The latter two presumably imply inter-institutional cooperation.

Bankruptcy and Economic Development: Increase work on hearing bankruptcy cases and give full play to “active rescue” and “timely liquidation”. We can expect to see the courts accepting more bankruptcy cases this year. Deepen the compliance reform for companies involved in criminal cases and continue to optimize the growth of the private economy. Properly handle real estate development and affordable housing contract disputes, and actively serve the new model of real estate development (recent Party/state initiative). Strengthen hearing and enforcement work in “agriculture, rural areas and farmers” (“三农”) to support rural revitalization. The latter is consistent with previous SPC policy.

Ecological and Social Justice: Serve ecological civilization [the environment]  and green and low-carbon development in accordance with the law. Strengthen the protection of the rights of women, children, the elderly, disabled people, etc. (It is unclear whether that will include a better legal infrastructure for sexual harassment cases.) Strengthen administrative trials, supervise and support administrative agencies to administer according to law and strictly enforce the law. Promote judicial advice/suggestions and national and social governance.

Court administration.  Improve the quality and efficiency of court hearings and accelerate the modernization of trial work. Deepen the comprehensive supporting reform of the judicial system and formulate the “Sixth Five-Year Plan” reform outline for the people’s courts. [It is unclear when it will be issued] Comprehensively and accurately implement the judicial responsibility/accountability system (see related documents here), and further implement  “supervision/”review” system  (阅核制) by senior court leaders. That system is one of President Zhang Jun’s initiatives.  Improve the hierarchical selection system for judges and promote the coordinated use of posts and establishments across administrative regions. This seems to be a reform to share judicial headcount. Deepen the “three-in-one” reform of criminal, civil, and administrative cases in intellectual property, environmental resources, and juvenile matters.

Foreign-related and Grassroots Courts: Enhance the foreign-related judicial hearing system (consistent with my observations about the importance of foreign-related matters) and efficiency. Do a good job of “replying to letters and visits“, and strengthen the management of the source of letters and visits.

Grassroots Courts:  Practice the “Fengqiao Experience” in the new era, promote resolving cases at source (诉源治理), provide practical guidance for mediation, and vigorously create “Fengqiao Style People’s Tribunals.” The SPC has issued six groups of related typical cases and the Chinese court media has begun to report on the creation of such people’s tribunals. The Report mentions strengthening relatively weak grassroots courts (相对薄弱基层法院), another initiative by President Zhang Jun. Under this initiative (full text of measures unavailable), 106 relatively weak local courts are targeted for additional support. The SPC has set quotas for each province, as well as a goal of removal from the list within one to three years.

Supervision, Guidance and Digital Courts: Strengthen supervision and guidance (stressed by President Zhang Jun, as mentioned above), deepen trial management, use the “People’s Courts Case Database” and improve the “Legal Response Network 法答网”. [More on this in a later blogpost, but it appears to be an updated version of letters to the 人民司法 (People’s Justice) mailbox)]. Develop a nationwide court “one network” and digital courts (数字法院) to boost efficiency. Note that the term “smart courts” (智慧法院), the subject of books, articles, and PhD dissertations in Chinese and English,  appears to have been dropped.

Court Supervision and Integrity: The final section for the most part repeats principles seen previously, such as improving political, professional, and professional ethical qualities. It flags improving the training of professional trial talents in foreign-related, intellectual property, and other fields and stresses the use of personnel assessment of all court staff.

Finally, I conclude with this extended quotation from the Report:

 the new development of the work of the people’s courts in the new era and new journey is fundamentally due to the leadership of General Secretary Xi Jinping and the scientific guidance of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era. It has benefited from the effective supervision of the National People’s Congress and its Standing Committee, the strong support of the State Council, the democratic supervision of the National Committee of the Chinese People’s Political Consultative Conference, the supervision of the National Supervision Commission and the Supreme People’s Procuratorate, the democratic supervision and support of various democratic parties, the Federation of Industry and Commerce, people’s organizations and non-party personages, and the enthusiastic concern, support and help of local party and government organs at all levels, deputies to the National People’s Congress, members of the National Committee of the Chinese People’s Political Consultative Conference, all sectors of society and the general public.

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Many thanks to an anonymous peer reviewer!

References to “I, me or mine” are to Susan Finder rather than Zhu Xinyue. Finally, I’d like to express my appreciation to followers of this blog for their patience.

arbitration, BRI, CICC, diversified dispute resolution, foreign courts, international commercial court, judicial interpretations

The Supreme People’s Court’s ongoing contribution to developing foreign-related rule of law (涉外法治)

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Press conference announcing the judicial interpretation on the application of international treaties & international practices

What is the Supreme People’s Court’s (SPC’s) contribution to developing the national strategy of “foreign-related rule of law (涉外法治)”?  My forthcoming article in China Law & Society Review sets out a broad framework for understanding what it is, but inevitably, like all academic works, the specific details will be out of date as soon as it is published. It can only be current as of the last time I was able to make substantial amendments, that is, in November 2023.  The slow process of finalizing the article (particularly the references) meant that I could incorporate references to the Tenth Politburo Study Session on Foreign-Related Rule of Law.  Since then, the SPC has continued to contribute to the national strategy of developing foreign-related rule of law. This blogpost flags those recent developments without duplicating what others have already written.  The recent developments include the SPC issuing the following since October, 2023:

  • judicial interpretations;
  • typical cases; and 
  • other judicial normative documents.

  1.  Judicial Interpretations

A September 2023 press release issued along with the fourth group of Belt & Road typical cases (为高质量共建“一带一路”提供有力司法服务和保障——最高人民法院民四庭负责人就发布第四批涉“一带一路”建设典型案例相关问题答记者问) flagged all of these judicial interpretations,. They were described in this October 2023 blogpost as “forthcoming attractions.”

  • December 2023, Decision of the Supreme People’s Court to Amend the Provisions of the Supreme People’s Court on Several Issues Concerning the Establishment of International Commercial Courts(2023).  This LinkedIn post explains the significance of the amendments–primarily to update China International Commercial Court rules to reflect the amended Civil Procedure Law and new provisions on the finding of foreign law in the second interpretation on the application of law to foreign-related civil relations.
  • December 2023, Interpretation by the Supreme People’s Court of Several Issues Concerning the Application of International
    Treaties and International Practices in the Trial of Foreign-Related Civil and Commercial Cases.  The SPC held a press conference (see the photo above) and also issued a related press release (translation here) as well as typical cases (see below).  Justice Wang Shumei (previously the head of the #4 Civil Division) highlighted that this interpretation was needed because the previous provisions on the application of international treaties in the General Principles of Civil Law were abolished when the Civil Code was promulgated, leaving the rules for the application of international treaties unclear.  This LinkedIn post summarizes its content.
  • November 2023 Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of the Law of the
    People’s Republic of China on the Application of Laws to Foreign-Related Civil Relations (II).  As this LinkedIn post details, the focus of the interpretation is on the ascertainment of foreign law.  How to ascertain foreign law has been an outstanding issue, as reflected in articles by SPC judges and several judicial policy documents over the past 10 years.  A paper (Chinese original here) written by CICC expert Xiao Yongping for the 2022 China International Commercial Court appointment ceremony, reviewing cases involving the ascertainment of foreign law flags some of the problems:  “a lack of rules over proof by professional institutions in China has spawned a range of drawbacks, including the vague criteria for determining the admissibility of the opinions of professional institutions, the omission of analysis and reasoning of proof opinions in judgments, and the unclear rules over which party should bear the fees for proof.”

    The interpretation specifies that the burden is on the parties to provide the content of the chosen law if they have a choice-of-law agreement, but it falls to the court to ascertain foreign law if the parties lack a choice-of-law agreement. Other provisions are intended to change the practice of Chinese courts deciding that they cannot ascertain foreign law and it is preferable to apply Chinese law instead. Please see this Library of Congress article for further details.

typical cases

Typical cases are a type of SPC soft law.  They are a tool by which the SPC seeks to unify the judgment (adjudication) standards of the Chinese courts.  They are a means by which the SPC seeks to harmonize the decisions of the Chinese courts to be consistent with SPC policy (or said another way, strengthen the firm guiding hand of the SPC). That guidance can relate to substantive or procedural issues, because the issues that come before the Chinese courts far outpace the infrastructure of existing law, including judicial interpretations.  The number of typical cases relating to arbitration matters therefore also signals that China’s Arbitration Law is insufficient for the current needs of the Chinese courts. Additionally, given the role of the SPC in social governance, typical cases also enable the SPC to do its part to further the latest Party policy, in this instance, the development (construction) of foreign-related rule of law. As highlighted several times on this blog, SPC President Zhang Jun appears to favor using typical cases to guide the lower courts and I expect this website (currently down) is the one that will be repurposed to make various types of typical cases more easily available.

Other judicial normative documents

The document that can be so classified is the  December, 2023  Work Guidelines of the Supreme People’s Court for the One-Stop Diversified International Commercial Dispute Resolution Platform (for Trial Implementation) (One-Stop Platform Guidelines).  Since the China International Commercial Court was established, the SPC has stressed (and the academic world far more!) the innovation of the “One-Stop Platform.”  This new document draws together SPC and lower court experience and thinking on how a “One-Stop Platform” should operate in the Chinese context.  Among other innovations, it has detailed provisions concerning neutral evaluation.  The incorporation of neutral evaluation into the One-Stop Platform Guidelines shows that the SPC (and the Chinese judicial system more generally) continues to make reference to “beneficial foreign/international experience.” 

Concluding Comments

As flagged in several press conferences or press releases issued in recent months, the issuance of these judicial interpretations, typical cases, and other judicial normative documents is linked to the importance the Party leadership places on developing foreign-related rule of law, as illustrated by the November 2023 Politburo study session. As shown by my 1993 article on the SPC, foreign-related matters were historically at the margins of its work.  One old-timer described the #4 Civil Division (the division handling foreign-related civil and commercial matters) to me as “小众“–niche–with a relatively small number of judges and responsible for a more limited range of issues, in comparison to the other SPC civil divisions.

These recent SPC documents taken together, provide insights into the important role of the SPC in developing Chinese law, in this case, foreign-related law–because many important provisions are missing from National People’s Congress (+ its Standing Committee) legislation, it falls to the SPC, through judicial interpretations, typical cases, and documents such as Meeting Minutes/Conference Summaries to fill in the gaps that enable the courts and the Chinese legal system to operate. It should be clear that the SPC is providing some of the basic building blocks for the construction (development) of foreign-related rule of law.
Happy Year of the Dragon to all readers and followers!

 

alternative dispute resolution, arbitration, BRI, CICC, Expert Committee, foreign courts, foreign-related cases, international commercial court, judicial interpretations

New Group of Supreme People’s Court Belt & Road Typical Cases

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At the end of September (2023) the Supreme People’s Court (SPC) issued its fourth group of Belt & Road (BRI) Typical /Model /Exemplary ) (this post will use the translation “typical”) Cases (第四批涉“一带一路”建设典型案例) (see an alternative link in case the official website is unavailable).  An English translation is available here.  Along with the cases, the SPC issued a press release in the form of answers by a responsible person of the SPC’s #4 Civil Division to a reporter’s questions (为高质量共建“一带一路”提供有力司法服务和保障——最高人民法院民四庭负责人就发布第四批涉“一带一路”建设典型案例相关问题答记者问).

“For the avoidance of doubt,” the points made by these typical cases (please see last year’s blogpost for a refresher on typical cases) apply to all types of foreign-related cases, whether or not they involve the BRI in some way.  Including “BRI” in the title highlights that these cases contribute to supporting the BRI (on the 10th anniversary of the strategy) and developing (“constructing” 建设) “foreign-related rule of law.” I’ll make several quick points about the cases and derive some useful information from the press release.

1.  Typical cases

This group of 12 typical cases includes:

  1. three cases relating to letters of credit and demand guarantees (#3 Jiangsu Puhua Co., Ltd. v. Bank of East Asia (China) Co., Ltd. Shanghai Branch; #4 China Power Construction Group Shandong Electric Power Construction Co., Ltd. v. GMR KAMALANGA Energy Ltd., et al (the SPC case was mentioned in this blogpost; and #5 Union of Arab and French Banks (UBAF) (Hong Kong) Ltd. [UBAF (Hong Kong) Ltd.] and Bank of China Co., Ltd. Henan Branch);
  2. Two cases involving professional services-related issues (#6 Fusheng (Tianjin) Financial Leasing Co., Ltd. v. Grant Thornton AG (a tort case) and #8 Tianwei New Energy Holdings Co., Ltd. v. Davis Polk & Wardwell LLP (contract dispute));
  3. Enforcement of a foreign  (Singapore) court judgment (#12, enforcement application by Shuang Lin Construction Pte. Ltd. ). The SPC and the Singapore Supreme Court have a related memorandum so it is unsurprising that a case involving an application to enforce a Singapore judgment was selected. See this 2023 factsheet with a listing of the other Singapore agreements with the SPC);
  4. Enforcement of foreign and Hong Kong arbitral awards  (#10, China Small and Medium Enterprises Investment Co., Ltd. v.  Russian Sakhalin Seafood Co., Ltd. & Oriental International Economic and Technical Cooperation Company, objection to enforcement case)( #11 Noble Resources International Pte. Ltd.’s application for recognition and enforcement of the Hong Kong International Arbitration Center arbitration award);
  5. One case involving the Convention on the International Sale of Goods (CISG), #1, Exportextil Countertrade SA) and Nantong Meinite Medical Products Co., Ltd;
  6. One case involving financial derivatives (#9, Standard Chartered Bank (China) Co., Ltd. v. Zhangjiakou United Petrochemical Co., Ltd.) ;
  7. One equity transfer-related case (#7, a China International Commercial Court case), Zhang Moumou and Xie Moumou v. Shenzhen Aoxinlong Investment Co., Ltd;
  8. One treaty interpretation case (#2, Nippon Property & Casualty Insurance (China) Co., Ltd. Shanghai Branch and others and Robinson Global Logistics (Dalian) Co., Ltd).

A 2022 blogpost explains the selection process. I’ll leave the discussion of the implications of these cases to the law firms, some scholars, and some other websites and focus on the takeaways from the press release. The press release updates last year’s report on the SPC’s work in foreign-related cases in support of related policies.

2. Political importance

The press release ties the work of the SPC to the January 2018 Party Central Committee and State Council General Office policy document on BRI dispute resolution (summarized here and discussed further in my “neverending article”) and flags that the SPC has conscientiously implemented the decisions and arrangements of the Party Central Committee.  The one-year gap between the third and fourth groups of typical BRI cases signals that the SPC leadership considers this a priority area. The phrase at the beginning of the press release (“providing powerful judicial services and guarantees (safeguards) for high-quality joint construction of the “Belt and Road”)  signals the continuing importance of providing judicial “services and safeguards” for major national strategies, including the BRI, whether in the form of a document or typical cases.

3. Takeaways From the Press Release

a.  CICC and other international commercial courts

The press release mentions the China International Commercial Court (CICC), its expert committee, and the establishment of local international commercial courts.  The CICC has accepted a total of 27 international commercial cases, 17 of which have been concluded. A judgment was posted in July on the Chinese version of the CICC website but has yet to be translated.

Although the CICC is often linked to the BRI, the cases that the CICC has accepted include parties from jurisdictions that are not participating in the BRI, such as the United States. Among the typical cases released this time, one is a CICC case.  The press release notes that the SPC  will revise the CICC-related judicial interpretations to reflect the amendments to the foreign-related section of the Civil Procedure Law.

The BRI-related services and safeguards policy documents, about which I have previously written (and about which I have more to say in the neverending article) served as the policy framework for establishing local international commercial courts. The SPC has approved twelve local courts in Suzhou, Beijing, Chengdu, Xiamen, Changchun, Quanzhou, Wuxi, Nanning, Hangzhou, Ningbo, Nanjing, and Qingdao as “international commercial courts (tribunals).” It requires some detective work to determine the jurisdiction of each international commercial court.

b. Encouraging mediation and an organic connection between litigation, arbitration and mediation

The  SPC reiterates its accomplishments in establishing a “one-stop” diversified resolution mechanism for international commercial disputes to achieve an organic connection between litigation, arbitration, and mediation.  As mentioned in the 2022 report, ten international commercial arbitration institutions and two international commercial mediation institutions are part of the SPC’s “one-stop” mechanism.

c. Improving rules in foreign-related commercial cases

On improving the system of applicable rules for foreign-related commercial laws and unifying judicial standards, the spokesperson flagged that the SPC issued the Conference Summary [Meeting Minutes] on Foreign-Related Commercial and Maritime Trial Work (Foreign-Related Commercial  & Maritime Law Conference Summary (Chinese and bilingual versions) (see my previous blogpost on the document), setting forth the SPC’s views on 111 issues in foreign-related matters.  In my “neverending article,”  I describe conference summaries (会议纪要 ) as intermediate documents, issued after courts confront new issues arising from a major policy document or new situation when the approaches of the lower courts need to be harmonized but it is not yet appropriate to issue a judicial interpretation.  A book recently published by the drafters of the Foreign-Related Commercial  & Maritime Law Conference Summary （《全国法院涉外商事海事审判工作座谈会会议纪要》理解与适用） reveals that after the #4 Civil Division prepared an initial draft, they “broadly sought comments”  from relevant SPC departments, relevant State Council ministries and commissions, and selected experts. That means that the document represents a greater consensus of the relevant institutions on the issues addressed than commentators realized.

Additionally, in the past ten years, the SPC has issued guidance on foreign-related matters to the lower courts in the form of judicial interpretations (32), policy documents (9), guiding cases (18), and almost 150 typical cases. These statistics update those set out in the 2022 report.

d. Actively participating in legislation revision

As mentioned in the 2022 report, the SPC has actively participated in the revision of foreign-related laws such as the Civil Procedure Law (to come into effect next 1 January and the Arbitration Law (amendments ongoing, see this blogpost on the SPC’s contribution).  My neverending article has a more extended discussion of this.

e.  “Forthcoming Attractions”

The press release flags some “forthcoming attractions” related to the SPC’s foreign-related judicial work.

  1. The SPC is  (and has been) working on several relevant judicial interpretations (as mentioned in earlier blogposts).

a.   Coming soon is the Interpretation on Several Issues Concerning the Application of the “Law of the People’s Republic of China on the Law Applicable to Foreign-Related Civil Relationships” (2) (关于适用〈中华人民共和国涉外民事关系法律适用法〉若干问题的解释（二）. The spokesperson revealed that the judicial interpretation had already been approved by the SPC’s judicial committee. It incorporates provisions  relating to ascertaining foreign laws.

b. As mentioned above, the SPC  will revise the CICC-related judicial interpretations to reflect the amendments to the foreign-related part of the Civil Procedure Law. The press release does not mention amending the comprehensive judicial interpretation of the Civil Procedure Law to reflect those amendments, but I surmise those are also being contemplated.

c. A third judicial interpretation, the “Interpretation on Several Issues Concerning the Application of International Treaties and International Practices in the Trial of Foreign-Related Civil and Commercial Cases”（关于审理涉外民商事案件适用国际条约和国际惯例若干问题的解释） is still in draft.  Because the original provisions on the application of international treaties in the General Principles of Civil Law were abolished when the Civil Code was promulgated, leaving the rules for the application of international treaties unclear, the SPC is drafting an interpretation to deal with a group of issues.  Those include the application of international treaties, the relationship between party autonomy and the application of international treaties, the choice of application of international treaties that are not in force in China, the application of international practices (two typical cases discuss the application of the Uniform Customs & Practice for Documentary Credits (UCP 600) and public order treaty reservations.

2. Databases on foreign law and expertise on foreign law.

With the support of some CICC expert committee members, one of the SPC’s BRI research databases and foreign law ascertainment service agencies,  a foreign (non-mainland Chinese)legal database with legislation, international law documents and other legal information on ten ASEAN countries, seven South Asian countries and the ASEAN international organization has been created. Separately another service provider has created a BRI expert legal database.  The 2022 report flagged these developments.

3. Judicial materials and training on foreign-related matters

The Supreme People’s Court is compiling a “Compilation of Common Laws and Regulations in Foreign-related Civil and Commercial Matters” to assist new hires and will increase the training and guidance to improve judicial competence on the application of international treaties. Improving judicial training on foreign-related matters has been an ongoing issue.  Post-Covid, a number of training programs for judges and judges assistants on foreign-related matters have been held.

The most recent one was a national program, held at the National Judges College, focused on training senior personnel in foreign-related matters, at which Justice Tao Kaiyuan spoke.  Those speaking at the program (from the relevant departments) included representatives from the Central Foreign Affairs Commission, the Legislative Affairs Commission under the National People’s Congress Standing Committee, Ministry of Foreign Affairs,  Ministry of Commerce, as well (presumably) senior personnel from the SPC’s #4 Civil Division and the International Cooperation Bureau (which deals with treaty negotiation and  judicial assistance matters). Local courts that have run such programs  include  Beijing (with the assistance of the University of International Business and Economics).

4. Judicial Assistance

China has concluded 171 bilateral judicial assistance treaties with 83 countries and has acceded to nearly 30 related international conventions (no change from October, 2022). In contrast to twenty or even ten years ago, the number of judicial assistance matters dealt with by the Chinese courts has increased.  The press release mentions improving the quality and efficiency of international judicial assistance such as better cooperation in the cross-border service of judicial documents,  cross-border investigation and evidence collection, ascertainment of foreign law, and recognition and enforcement of foreign (extra-territorial) judgments and arbitral awards.  This does not yet mean that it is possible for foreign litigators to take depositions in mainland China for foreign court proceedings. Service of process was an issue in this 2022 case in the Southern District of New York.

About Me, BRI, Communist Party and the Courts, Role of the Supreme People's Court

Decoding the Supreme People’s Court’s Services and Safeguards Opinions

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I recently published a short article on the Perspectives blog of the  New York University School of Law U.S. -Asia Law Institute, with the same name as this post, linked here.  The Perspectives blog has posted a PDF version, and I am reposting it here for the convenience of some blog readers. I have finished a long version of the article which I am now amending. The research on which this article is based draws on discussions with many persons who cannot be thanked by name and others who will be whenever the longer version is published. I particularly appreciate those knowledgeable persons who have shared their insights with me over the many years it has taken to write the longer version.

About a year ago, I published an article on the same blog, entitled Why I Research China’s Supreme People’s Court.   The PDF version is available here.

Many thanks to Katherine Wilhelm, Executive Director of the U.S. -Asia Law Institute, for her skillful editing of both articles.

About Me, BRI, CICC

How & Why the Supreme People’s Court serves the Belt & Road Initiative

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I’m honored to be speaking in a few days (remotely) in a webinar sponsored by the Pacific-Asian Legal Studies program of the University of Hawaii at Manoa’s William S. Richardson School of Law on how and why the Supreme People’s Court Serves the Belt & Road Initiative (sign up link is here).

The event will take place at 2 pm, 5 November, Hawaii time, which translates into 8 am on 6 November in the GMT +8 timezone (Hong Kong, mainland China, Singapore, etc.), 11 am in Sydney, and 8 pm on the US East Coast.  The timing doesn’t work well for England (midnight) or Europe. I believe a recording will be available at a later date.

 

 

alternative dispute resolution, arbitration, BRI

Invisible Belt & Road Disputes

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slide from my presentation

In academic and many professional discussions of Belt & Road Initiative (BRI) disputes, the focus is on disputes between the Chinese and foreign parties.  Few mention disputes between two or more Chinese parties but linked with a BRI project.   (Professor Vivienne Bath of the University of Sydney Law School is one of the few exceptions.)   These are what I call “invisible  BRI disputes,” because few in the academic world and a small group in the professional world have noticed them.

I mentioned these type of disputes during my keynote speech at the University of Pittsburgh School of Law and Asian Studies Center’s “Deals and Disputes: China, Hong Kong, and Commercial Law” webinar when I spoke about the role of the Supreme People’s Court (SPC) in developing “Chinese international commercial law” (as I defined the term).–as can be seen in the slide above.

Although I made inquiries with some authoritative persons in the world of Chinese arbitration and the judiciary,  they were unable to give even a vague estimate of the number of these invisible BRI disputes, but all had the sense that they have been increasing and will continue to increase, both in arbitration and in the courts, as more projects undertaken by Chinese contractors overseas encounter unanticipated problems and enter into dispute settlement proceedings with one or more foreign counterparties and thereafter seek to claim their losses from their Chinese subcontractors (or sub-subcontractors) or suppliers or prevent their banker from paying out under a demand guarantee (or counter-guarantee).

The Belt and Road Initiative: Legal Risks and Opportunities Facing Chinese Engineering Contractors Operating Overseas (Engineering Contractors Book), written by a group of highly experienced Chinese legal advisers to major Chinese contractors, identified some of the risks to Chinese companies when doing contracting projects overseas.  As this and other sources have written, Chinese contractors are often engineering, procurement, construction (EPC) contractors in BRI jurisdictions.

This blogpost looks at three types of business risks leading to invisible disputes, as identified by the authors of the Engineering Contractors Book and others advising Chinese engineering contractors.  I look forward to others taking this topic forward.

Invisible Dispute #1

The Engineering Contractors Book said of the risks of subcontracting to other Chinese companies: “illegal subcontracting and multilevel subcontracting has become one of the biggest risks to Chinese contractors nowadays…[T]he choice of subcontractor is very important, which will result in one honors all; one damns all.” The book gives this example of invisible dispute #1.

 Company A is a large [Chinese] international contractor… Company A undertakes the general contracting, and completes sets of equipment, engineering consultation and engineering design, project management and engineering supervision, installation and debugging and technical services of various domestic industrial projects. A project in Country F in Southeast Asia was developed and executed by two subsidiaries of Company A: Company B and Company C. Company B is a trading company. This was the first time that it carried out foreign projects. Previously, Company B had no overseas project experience and personnel with relevant experience. Company C is an enterprise whose main business is project design, debugging and tests. In the selection of equipment suppliers, materials suppliers and other suppliers, Company B chose enterprises that had cooperated with Company A in other projects. Problems concerning these enterprises occurred during the installation, debugging and operation process, resulting in project delay, repeated procurement and increased costs. In the stage of commissioning and trial, Company C subcontracted the work to Company K, and Company K subcontracted to Company P, which was also a subcontractor of the employer. This subcontracting mode caused many problems, which led to project delay and triggered the employer’s claim.

According to a recent article in the Chinese press, about 70% of these disputes are heard in Chinese domestic arbitration.  A legal adviser to a provincial-level state-owned engineering contractor wrote recently about several of such cases heard in the courts.

In correspondence, an arbitrator who has heard these cases commented:

subcontracting and multilevel subcontracting are common phenomena, especially overseas. When the contractor cannot finish on time, the employer looks to the local construction team….

these cases are troublesome.  The problem is obtaining the crucial evidence, not because of any local restrictions, but because after projects go into operation, there are major changes to the site [of the construction project], so loss is difficult to determine. [In one case[ there were several boxes of peripheral and circumstantial evidence, in English, Arabic, and Chinese, but they did not form a chain of evidence.

Invisible Dispute #2

The authors of the Engineering Contractors Book wrote about demand guarantee risk.  In their view, fraudulent claims by the employer (and beneficiary of a demand guarantee) in a construction project are a significant risk because some employers may make claims in bad faith; international legal harmonization on the issue of fraud in demand guarantees is insufficient.  Invisible dispute #2 arises when an employer seeks to draw on the demand guarantee and the Chinese contractor files a claim against its bank, requesting the court to issue an injunction to stop payment under the demand guarantee on the basis of fraud.  Sometimes the project owner’s overseas bank is added, involving demand guarantees given by a Chinese contractor operating overseas and its bank. One example was mentioned in an earlier blogpost and another example is found in the deal list of a leading Chinese disputes lawyer:

Represented Beijing xxxx International Engineering Technology Co., Ltd. in an overseas construction letter of guarantee dispute before the ….. High People’s Court (first instance) and the Supreme People’s Court (second instance)–

The hearing of cases involving demand guarantees (standby letters of credit) appears to be an important area in which Chinese style case law will supplement the principles in the Civil Code, its relevant judicial interpretation, and the SPC’s 2016  judicial interpretation on independent (demand) guarantees.  At the end of last year (2020), the Shanghai Higher People’s Court issued a policy document on improving the hearing of foreign-related financial cases  (上海法院服务保障进一步扩大金融业对外开放若干意见), one point of which calls for the courts to improve the hearing of demand guarantees. The policy document was accompanied by typical cases (典型案例), one of which was a demand guarantee case heard by the Shanghai Financial Court.

I expect two further authoritative decisions will harmonize how legal and finance professionals understand Chinese law related to demand guarantees.  Those decisions will be made in two cases that the China International Commercial Court (CICC) has heard but has not yet decided. The cases involve demand guarantee (standby letter of credit) issues and the question of the standard for fraud and the issuance of an injunction.  If the SPC takes a case as a CICC case, it means that the legal issue is considered important enough to require a panel of five Supreme People’s Court (SPC) judges to hear the case.  The decisions will be soft precedents, ones that fill in a gap in statutory law and judicial interpretations.

Invisible Dispute #3

The authors of the Engineering Contractors Book wrote about supplier (often Chinese supplier) risk:  “if contractors fail to enhance the selection and management of suppliers, they are likely to face difficulties during the project execution. In practice, there are many cases in which contractors suffer losses due to improper selection or poor management of suppliers…Some suppliers use various unreasonable means to guarantee their profits in the bidding and follow-up process, which will inevitably bring greater risks to contractors.” My comments here are limited to Chinese supplier risk.

One example that can be identified most easily is related to the construction of Justice House in Tbilisi, Georgia.  Disputes over the quality of equipment and related issues ended up in litigation in the Sichuan Higher People’s Court.

Concluding thoughts

It is understood that first and third type of disputes may be heard by Chinese arbitral tribunals or courts, depending on whether the contracts have arbitration clauses, while the demand guarantee cases are generally heard in the courts.  Chinese legal professionals have commented that these cases are challenging for both arbitral tribunals and the courts to hear, particularly if much of the evidence is outside of China and especially if technical expertise is needed. Another issue raised by one of the authors cited is the choice (application) of law, as some jurisdictions may require that local law apply to any subcontracting, but Chinese courts tend to apply Chinese law.

Two recent articles in the Chinese professional legal press by a senior Chinese construction lawyer focused on a recent initiative to establish a qualification system for expert witnesses in construction engineering disputes.  It is even more challenging for Chinese courts to hear disputes that may involve foreign technical expertise.  Yet another issue relates to evidence formed abroad.   A third issue, not mentioned in this blogpost, relates to the greater need for dispute adjudication boards in construction disputes heard in the Chinese courts. Both the China International and Economic and Trade Arbitration Commission (CIETAC) and the Beijing Arbitration Commission have such rules in place, although with different titles.

These invisible BRI disputes raise several of many areas of law that need further work  as Chinese companies operate internationally but want to have related disputes heard at home, and China seeks to progress domestic and foreign-related legislation, or as the current slogan has it “筹推进国内法治和涉外法治.”

____________________________

Many thanks to Sun Wei, partner with the Zhong Lun Law Firm, and some authoritative persons for sharing their insights. The author alone is responsible for the above views.

BRI, Case law, CICC, foreign-related cases, judicial documents, judicial interpretations

The Supreme People’s Court & the Development of Chinese International Commercial Law

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I am very honored to have been the first keynote speaker of the webinar “Deals and Disputes: China, Hong Kong, and Commercial Law” held on May 18-21 (2021).   The webinar was organized by the University of Pittsburgh, with its School of Law’s Center for International Legal Education working together with its Asian Studies Center. Many thanks to Professors Ronald Brand and James Cook for the kind invitation.   For those who missed it, the recording of my presentation is now available on the Youtube channel of the Center for International Legal Education.

I spoke on the Supreme People’s Court (SPC) and the Development of Chinese International Commercial Law (as I defined it).  My presentation synthesizes many points that I have made separately on this blog and should be useful to students or others seeking to understand several aspects of the work of the SPC.   Many thanks to Professor Pamela Bookman and Mary Buck Young for taking the time to make insightful comments on earlier drafts of my Powerpoint slides. Special thanks to (one of) my research assistants, Yuan Ye, for his work in transforming SPC statistics into a more understandable form and translating them into English.

alternative dispute resolution, arbitration, BRI, CICC, diversified dispute resolution, foreign investment law, foreign-related cases

Supreme People’s Court’s new policy document on opening to the outside world

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SPC Press conference announcing the policy document

On the afternoon of 25 September, the Supreme People’s Court (SPC) issued yet another guiding opinion providing services and guarantees, this one on providing services and guarantees in support of expanding opening to the outside world  (Services & Guarantees to the Open Policy Guiding Opinions (Guiding Opinions)) (最高人民法院关于人民法院服务保障进一步扩大对外开放的指导意见). It was approved by the SPC’s Party Group, as was BRI Opinion #2.

Senior legal officials from the Ministry of Commerce (MOFCOM) and the Ministry of Foreign Affairs (MFA) spoke at the SPC press conference, in what this observer views as a cross-institutional show of support for China’s policies of opening to the outside world. At a time that government officials are focused on “dual circulation,”  it is a reminder that the opening to the outside world policy remains in place and that one of the SPC’s many responsibilities is to handle those issues properly.  The photo is also one illustration of the place of the SPC within China’s system (体制). 

SPC Vice President Yang Wanming (杨万明) spoke first at the press conference, with the officials from MOFCOM and MFA adding comments. This signalled to the careful observer that he has assumed the responsibility for overseeing the #4 Civil Division (responsible for foreign-related commercial and maritime matters) from Luo Dongchuan (who has been transferred to Fujian Province to serve as Political Legal Commission Party Secretary).

This brief (17 articles) guiding opinion providing judicial services and guarantees (not a judicial interpretation, see this explanation of what it is) is the latest judicial policy on foreign-related (this blogpost will use the term “cross-border”, to incorporate some Hong Kong-related) legal issues (inbound and outbound) relevant to the Chinese courts, drawing on BRI Opinion #2 (issued end 2019 and BRI Opinion #1) and the June, 2020 guidance on Covid-19 and cross-border commercial issues. 

As readers of this blog could anticipate, this opinion is harmonized with the latest international and domestic developments and the latest guidance from Xi Jinping.  According to the official commentary, it is intended to be guidance for judges engaging in cross-border cases for the foreseeable future, and appears to further develop the principles related to cross-border issues in the Opinions of the Supreme People’s Court on Thoroughly Implementing the Spirit of the Fourth Plenum of the 19th Party Congress to Advance the Modernization of the Judicial System and Judicial Capacity.  

As to what those judicial services and guarantees are, Justice Yang said the following:

Wherever the national strategy is deployed, the judicial services and guarantees of the people’s courts will be there (国家战略部署到哪里，人民法院司法服务和保障就到哪里.)

How does this document relate to other Chinese legislation?

To clarify the relationship between this opinion on the one hand and legislation, judicial interpretations and other types of judicial documents (such as the two BRI Opinions), Justice Yang gave a quick summary in SPC jargon:

While maintaining consistency with existing laws and regulations, judicial interpretations, and judicial policy documents, the Guiding Opinions also strengthen the macro-guidance of the people’s courts’ services and guarantees opening to the outside world from a higher level,  and are organically linked to other SPC judicial policy documents for major opening-up decisions, major strategies, and major initiatives, to further improve the system of judicial services and guarantees of the work relating to opening to the outside world与现有法律法规和司法解释、司法政策文件保持一致的同时，从更高层面加强人民法院服务保障对外开放工作的宏观指导，与最高人民法院出台的其他司法服务保障国家对外开放重大决策、重大战略和重大举措的司法政策文件有机衔接，进一步完善了司法服务保障对外开放工作体系。

What is means is:

  1. The Guiding Opinions are intended to be consistent with current law and regulations, SPC judicial interpretations, and SPC judicial policy documents.
  2. The Guiding Opinions links with previous SPC policy documents (such as BRI Opinions #1 & #2, the FTZ Opinions, the Lingang Opinions, Diversified Dispute Resolution Opinions, etc.)（see more below);
  3. It is intended to provide comprehensive guidance and better support government policies on opening to the outside world.

The Guiding Opinions. like many of the documents analyzed on this blog, are written in SPC jargon. Decoding this language poses challenges to those are concerned or who should be concerned about the impact of how the Chinese courts interact with the rest of the world. 

Decoding the language, however, enables the careful reader to understand outstanding issues and contemplated reforms or other measures, including possible judicial interpretations.

Summary and comments

This blogpost will summarize and make some brief comments on some of the issues mentioned in each of the six sections of the documents and make a few concluding comments.  There are many more issues in this document that should be explored, but I’ve been delayed by a hand injury.

1. Political stance

The first section calls for judges to raise their political stance.  This is standard language in the New Era. The first article frames the documents in current political language, including that frequently used in Chinese foreign policy documents and to relevant political documents. Therefore the first article (and elsewhere) refers to multilateralism, equally situated parties, and creating a legalized, internationalized convenient business environment.

The second article calls for the courts to provide services and guarantees for ten crucial national strategies and policies: promoting the BRI; pilot free trade zone construction [enhancement]; Hainan Free Trade Port construction; construction of the Greater Bay area; Beijing-Tianjin-Hebei area development; Yangtze River basin development; Shenzhen model city for socialist development; China-Shanghai Cooperation Organization local economic cooperation demonstration zone; Great Maritime Power construction. 自由贸易试验区建设、海南自由贸易港建设、粤港澳大湾区建设、京津冀协同发展、长江三角洲区域一体化发展、长江经济带发展、深圳中国特色社会主义先行示范区建设、中国-上海合作组织地方经贸合作示范区建设、海洋强国建设。This second article also calls for new mechanisms for hearing cases, and improving the application of law, to create a transparent stable predictable legalized business environment. The list of ten national strategies and policies is a signal to the leadership and to the lower courts, but for those of us far outside the System,  it signals to us that these are the most important current policies related to foreign-related judicial policy. It also appears that the national strategies linked to the opening policy evolves over time.

2.  Basic principles of foreign-related litigation

The second section focuses on basic principles of foreign-related litigation–of which it sets out three: protecting the equal rights of parties; respecting the intent of the parties; and implementing (judicial) jurisdiction according to law. 

The second principle, described in Article 4, includes the right of parties to choose governing law, a court with jurisdiction and arbitration, litigation, or mediation to resolve their disputes. However, as mentioned previously, Chinese law treats choice of arbitration and litigation differently, requiring litigants choosing a (foreign court) to have an actual connection to the foreign court (see Professor Vivienne Bath’s previous scholarship on this), although there isn’t a counterpart position for arbitration. As mentioned previously, the  application of foreign law by Chinese courts is a work in process.  The SPC has given a great deal of publicity to its platform for the ascertainment of foreign law. which includes determinations of foreign law on a certain issue by certain authorized organizations and opinions given by members of the international expert committee of the China International Commerce Court (CICC). As I wrote close to two years ago, the China International Commercial Court (CICC) rules do not clarify a number of practical questions. Could a court request an advisory opinion from an expert and from a designated ascertainment center, and if so, what relative weight will be attached to each? Presumably, a court would give it greater weight than an opinion from an expert provided by a party. 

The third principle, described more fully in Article 5, is linked to protecting China’s judicial sovereignty and repeats the statement that conflicts in jurisdiction and parallel proceedings will be resolved properly (妥善解决). This has appeared in BRI Opinions #1 and #2, but specific measures to resolve parallel proceedings have not yet been noted. Parallel and conflicting proceedings are an ongoing issue (not only between the Chinese courts and other courts outside mainland China) and will be further mentioned below.  As Professor Bath discussed, several scenarios are common. One involves situations in which parties had agreed to the exclusive jurisdiction of the courts of one country, but a party brings proceedings in the courts another country (China), which accepts the case and may issue a judgment before the original court. Another set of cases involves an alleged arbitration agreement which provides for arbitration overseas, but a party brings a case in a Chinese court nonetheless.  A variation has recently been noticed by two leading practicing lawyers in China.  In that case, an issue that had been pleaded in arbitration proceedings in Hong Kong and reviewed by the relevant Hong Kong court was not given res judicata effect in China.  The ruling by the Shijiazhuang court has been reviewed by the SPC under its Prior Review proceedings.

Although parallel proceedings in courts outside of China and in China have previously been noted primarily in maritime law (and anti-suit and anti-anti-suit orders),the parallel/conflicting proceedings issues seem to be moving to the area of Intellectual property (IP) law, likely related to the multi-jurisdiction litigation between Huawei and Conversant concerning standard essential patents, including in the UK Supreme Court and the German courts. What has been noted is one of the SPC’s research topics includes protecting China’s judicial sovereignty (national interests) through anti-suit or anti-anti-suit injunctions. The SPC Intellectual Property Court has issued an anti-suit injunction order against Conversant and the Wuhan Intermediate Court issued an anti-suit injunction order against Intel Digital (the linked article has a summary of the facts in the Wuhan case, but reserve judgment on the author’s comments on the authority of Chinese courts to issue these order).

3. Modernizing China’s foreign-related and maritime litigation systems

This third section contains four articles: application of law; fully develop the advantages of service and guarantees to cross-border trade and investment; promote the integration with the internet of foreign-related litigation; and develop diversified dispute resolution related to international commercial dispute resolution. Many of the provisions in this section repeat provisions in the BRI Opinions #1 and #2.  What appears to be new is a statement that the SPC will seek to integrate prestigious foreign arbitration and mediation organizations to be part of its one stop mediation/arbitration/litigation mechanism.

4. Increase judicial protections

Article 10 mentions foreign-related administrative litigation issues. They were mentioned briefly in BRI Opinion #2 and once in BRI Opinion #1, here seeing greater stress.  Section 11 focuses on cross-border intellectual property issues.  It has some important new content.  It mentions improving (完善涉外知识产权诉讼制度) foreign-related IP litigation procedures, putting into judicial policy previous statements by former Vice President Luo Dongchuan about the need for special IP litigation rules. It again mentions researching and responding to parallel international litigation relating to intellectual property rights and becoming a preferred place for settling IP disputes. From comments made by several leading experts in a recent webinar the Chinese courts are an important jurisdiction in IP litigation. It is unclear whether the use of anti-suit (or anti-anti-suit )injunctions by the Chinese courts will be the way that litigants are encouraged to turn to the Chinese courts to settle their global IP disputes. According to comments by several persons with expertise in Chinese IP law and related commercial issues, a number of factors are leading to the Chinese IP courts becoming an important forum for the resolution of IP disputes.  Related to this, see the analysis by Doug Clark, partner in the IP law firm Rouse in this article, in which he says that the Chinese courts are looking to take on the role of setting global FRAND rates. Also see related blogposts on Mark Cohen’s blog, Chinaipr.com.  These issues are complex and important.

5.  Prevent and resolve major risks

This section has only two articles.  Article 13 focuses on perfecting risk control mechanisms for major cases and firmly establishing an overall national security concept.  These phrases are not unique to the SPC, but reflect language in Party documents, with the “overall national security concept” attributed to Xi Jinping.  This article also calls on courts to coordinate the overall international and domestic situations, adhere to bottom-line thinking and risk awareness, understand the domestic and international situation and risks and challenges facing China’s opening up.  The final phrase in this article calls on courts to resolutely defend our (China’s) judicial sovereignty and national security.  So it seems that the concept of “judicial sovereignty” (used several times in this document) is being used to protect China’s national sovereignty.

The second one (Article 14), on guaranteeing state security and economic and social order gives a different priority to possible cross-border criminal law issues from either BRI Opinion.  Neither BRI Opinion mentioned  infiltration (渗透), espionage (间谍), sabotage, subversion  (渗透颠覆破坏). Infiltration and espionage are mentioned immediately after the article heading. (the sentence is: “thoroughly participate in the struggle against infiltration, espionage, separatism, terrorism, and cults, by strictly combatting crimes of infiltration, subversion, and sabotage, and crimes of espionage, violent terrorism, ethnic separatism, religious extremism, and other crimes that endanger national security” 深入参与反渗透反间谍反分裂反恐怖反邪教斗争，严厉打击各种渗透颠覆破坏、间谍、暴力恐怖、民族分裂、宗教极端等危害国家安全的犯罪. (Many thanks to Chinalawtranslate.com for this translation). Other concerns, such as violent terrorism, ethnic separatism, religious extremism have been seen previously in the other two BRI documents. and article 14 again stresses criminal justice cooperation between China and the rest of the world. The reason for the change in priorities is unclear. What signal does this send to the international commercial and judicial world (international community) that infiltration, espionage, sabotage and subversion are being mentioned?

6. Increasing judicial cooperation, increase the international influence of the Chinese judiciary

These three articles address judicial cooperation, judicial exchanges, and training of judges who can handle foreign-related cases.  

Article 15 concerns judicial assistance treaties, encouraging Chinese judges to participate in the negotiation of bilateral and multilateral judicial assistance treaties.

Article 16, on judicial exchanges, including highlighting exchanges with the principal international legal organizations, also summarizes ongoing SPC practices in developing exchanges with BRI judiciaries, although it is not so specified.  

Article 17 calls for the better training, recruitment and promotion of persons who can deal with specialized legal issues such as cross-border finance, environmental protection, maritime law, intellectual property. Measures include joint programs with universities, exchanges with international organizations and international commercial courts, with the objective of having judges who are able to participate in the drafting or amendment of relevant international rules [a glimpse into a judiciary certain special functions] and the creation of a group of Chinese judges with an international perspective. This appears to be directed to law schools and senior personnel in the lower courts and likely involved concurrence by the SPC’s International Cooperation Bureau.  As has been mentioned in earlier blogposts, the career progression for legal professionals to become judges has slowed because of the personnel reforms in the previous round of judicial reforms, under which young professionals work as judges assistants for a number of years before applying (and passing relevant examinations)to become a judge.  From my observations, fixed quotas on the number of judges in a court can mean a talented, educated judges assistant in one court may wait significantly longer than a similarly qualified person in another court to become a judge.

A few concluding comments

Perhaps it is not realized that multiple documents conveying many of the same messages, with references that need decoding, may not convey the intended message to the international business community that the Chinese courts welcome and will treat fairly foreign commercial litigants, and that Chinese law is stable, transparent and predictable. 

The Guiding Opinions call for increasing publicity about and the international influence of Chinese justice, and international confidence in Chinese law, through translating guiding and typical (exemplary/model) cases into foreign languages.  This echoes language in BRI Opinion #2.  The international community outside of China may or may not consider those sources to be primary ones in forming a view about the Chinese courts.  In my view, it is more likely that the international community will look to decisions and rulings of the Chinese courts in several categories of cases: enforcement or other proceedings involving foreign (and Hong Kong) arbitral awards;  parallel or competing proceedings, whether with other courts or with international arbitration;  difficult commercial ones, particularly involving Chinese state-owned enterprises, or other Chinese national champions and issues related to intellectual property, particularly as it relates to “cutting-edge” technology.  This observer surmises that the international judicial community will also look for a spirit of mutual respect for foreign courts and their jurisdiction.

The Guiding Opinions repeats language about Chinese courts participating in the formulation of international rules, an ongoing theme since the 2014 4th Plenum of the 18th Party Congress decision. One example is the constructive role of the SPC negotiator as a member of the Chinese delegation that participated in the drafting of the Hague Judgments Convention. But what the international community will also look for is China’s capacity to harmonize its legislation to be able to ratify the international conventions whose drafting it participates in.

The introduction to Guiding Opinions notes that comments were sought from many sources. It is unclear whether the views of international users of the Chinese court system were solicited. Other developments in which the international community may display an interest are the creation of additional institutions within the Chinese judiciary to enable the Chinese judiciary to better understand the needs of（domestic and international) users.

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Many thanks to several highly knowledgeable readers who commented on earlier drafts of this blogpost.

alternative dispute resolution, arbitration, big data, BRI, model cases, transparency

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

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

What’s new?

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

White Papers

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

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

Publishing typical cases

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

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

Importance of the White Paper

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

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

 

BRI, One belt one road

China-Belarus Judicial Cooperation under the Belt & Road Initiative

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

Guest post by Safia Yablonskaia*

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

Bilateral Judicial Cooperation between Belarus and China under the BRI

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

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

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

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

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

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

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

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

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

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

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

Comparison of EU-Belarus & China-Belarus Judicial Cooperation

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

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

Impact of the Current Political Situation on Judicial Cooperation with China

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

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

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