How to translate Chinese court terminology?

u=88646385,14022782&fm=27&gp=0When I write about the Supreme People’s Court (SPC), like many others writing about Chinese law in English, I face translation issues, as legal concepts are embedded in language.  The challenge is to find appropriate legal terminology in English for PRC Chinese legal concepts, an issue that “brother” blogger and creator of the Chinalawtranslate.com blog Jeremy Daum, and more broadly, anyone dealing with the Chinese legal system confronts directly.

He Fan , head of the planning department of the SPC’s judicial reform office, prolific translator of (English language) books on the US courts, particularly the US Supreme Court, has recently written about English translation of Chinese court terminology in his Wechat public account. Earlier, the Chinalaw listserv also hosted a discussion of the translation of some specific Chinese court terms.  To bridge the translation worlds, I am summarizing He Fan’s views on the translation of court terms, with my own comments in italics. He Fan’s sources are listed at the end, as are details on how to make comments or corrections.

  1. 司法机关:  literally translated as “judicial organs,” which in English generally refers to the courts only, but in Chinese sometimes means 公检法 (public security/procuratorate/courts). Foreign journalists often have difficulty understanding this term. He Fan notes that if the term is translated as the “Judicial Branch,” it appears to mean the court system [and to an English speaker implies a system with multiple branches of government];
  2. 审判机关: He Fan translates as “Adjudicative Body,” which he says is generally accepted internationally, but in my own experience “judicial organ” is used more frequently.
  3. 审判员: he considers “judge” more easily understood (my 1993 article had a discussion of this vs. 法官);
  4. The Supreme People’s Court of the People’s Republic of China”–He Fan notes that internationally, SPC is the usual abbreviation;
  5. 地方各级人民法院: local people’s courts at various levels;
  6. “基层人民法院: He Fan notes several different usages–“primary people’s court”; “grass-roots people’s court”; “basic people’s court”; “district people’s court”–he prefers primary people’s court.

He Fan’s example: 北京市海淀区人民法院:Primary People’s Court of Haidian District of Beijing Municipality of the People’s Republic of China; abbreviated as Haidian Primary People’s Court [I would personally move “Haidian District, to before “Primary/basic level people’s court]

7. 中级人民法院”–usual translation is “intermediate people’s court.”

8.  高级人民法院:,“higher people’s court;,“high people’s court,” or rarely “superior people’s court”–He Fan’s preference is “High Court;”

9. 专门法院: He Fan notes that “Special Court” is sometimes seen but “Specialized Court” is more accurate,and won’t be mistaken for special tribunal。

  • 军事法院: “Military Court”;
  • 海事法院: “Maritime Court”;
  • “知识产权法院”译为“Intellectual Property Court”;
  • “金融法院”译为“Financial Court”;
  • “互联网法院: “Internet Court,” He Fan says some translate it as “Court for Internet,” but the usual translation appears to be Internet Court.

Internal court organizations

In his first Wechat article, He Fan splits internal court institutions into those designated by law and other ones, but this blogpost will disregard that distinction.

  1. 独任庭: single judge panel
  2. 合议庭: collegial panel;
  3. 国家赔偿委员会: “the State Compensation Committee.” I have also seen “State Compensation Commission.”
  4. 审判委员会: “Judicial Committee”,or “Adjudication Committee,” He Fan prefers “Adjudication Committee,” as it is less likely to be confused with committees created by the judiciary. My view is that “judicial committee” is used more widely.
  5. 庭:He Fan mentions chamber, division, tribunal, or “adjudication tribunal,” but he himself prefers “division,” as he considers it more accepted internationally, so:
    • 立案庭: Case-filing Division;
    • 民事审判庭: Civil Division;
    • 刑事审判庭: Criminal Division;
    • 行政审判庭: Administrative Division;
    • 审判监督庭: Judicial Supervision Division;
    • 速裁庭: Summary Division;
    • 人民法庭: but long-established practice is to translate it as people’s tribunal.

The recently established specialized “tribunals” (审判法庭), such as “深圳金融法庭“ (Shenzhen Financial Tribunal) should be translated as “Shenzhen Financial Court,” so by the same reasoning “最高人民法院第一巡回法庭: The 1st Circuit Court of SPC” (personally I would move “SPC” to before 1st Circuit).

Personnel-related terms

  1. 法院干警: literally court cadres & policeman: He Fan believes the term is confusing to foreigners and suggests using “judges, court staff, and judicial personnel.” I have previously translated it as “court officials, (cadres & police)”  and discussed the issue of terminology several times. 
  2. 首席大法, 首席法官: Chief Justice” and “Chief Judge”; 中华人民共和国首席大法官: He Fan states it should be “Chief Justice of the People’s Republic of China” and not “Supreme People’s Court Chief Justice.”
  3. 高级人民法院院长: [according  to the Judges Law] s/he is a 大法官– “Justice,” but “Chief Judge” of his/her court;
  4. 副院长: the practice is to translate it as “Vice President”。“常务副院长: (the #2 in charge), generally translated as “Deputy President”,or “Executive Deputy President” (I personally have seen “Executive Vice President” more often);
  5. 庭长:  three translations are used–“Chief Judge”;“Director”;“Head of Division.” He Fan’s view is that “Chief Judge” is least desirable, because it is least understandable by the foreign audience and can easily be confused with  “court president” and prefers “Director” and for “副庭长”–Deputy Director.” My own writing is not entirely consistent–I  have used “division chief” and “chief judge of _ division.” 
  6. 审判长: the responsible judge on a three-judge collegiate panel. He Fan recommends using “Presiding Judge,” analogizing to the practice of the US federal courts.
  7. 高级法官: generally translated Senior Judge (of which there are ranks 1-4), not to be confused with the US federal courts’ “senior judges” (older judges with a reduced caseload).
  8. 书记员: He Fan advising translating as “Law Clerk” (my practice has been “clerk”); 法官助理 as “Law Assistant” (my practice has been “judge’s assistant);
  9. 司法警察: “Judicial Police;”
  10. 人民陪审员: people’s assessor;
  11. 技术调查官: “Technical Examination Officer.”

Court administrative offices/personnel

办: “Office”,

局: 用“Department” or “Bureau,” (my own practice is “Bureau.”)

“处”用“Division”.

Such as: “办公厅”“General Office”;“研究室” “Research Office”;“监察局”“Supervision Bureau”;“司法改革办公室”: “Judicial Reform Office”;“国际合作局”: “International Cooperation Bureau”;“外事办”:“International Affairs Office”;“司法行政装备管理局(处)”: “Bureau(Division) of Judicial Administration & Equipment Management” (I would personally put “Bureau or Division at the end of the phrase).

Resources

Chinalawtranslate’s glossary and links to other resources;

As cited by He Fan:

  1. translations by Chinalawinfo and WoltersKluwer;
  2. Taiwan’s Judicial Yuan’s bilingual legal glossary;
  3. a glossary of translation of government institutions issued by the Beijing government;
  4. Shanghai government’s glossary;
  5. Shenzhen government’s glossary;
  6. Analysis by foreign scholars.

Corrections?

Those who disagree, have comments or have additions to the above list, please contact me at supremepeoplescourtmonitor@gmail.com or use the blog’s comment function.

 

 

Signals in Supreme People’s Court President Zhou Qiang’s 2018 report to NPC (part 2)

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

Report drafting

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

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

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

The summary below (part 2) is not comprehensive but provides some highlights. It signals that the work of the SPC is perfectly synchronized with national policy.

Judicial protection of human rights

The second section of the speech touched on correction and prevention of “mistaken cases,” a topic mentioned in previous NPC reports, and still an ongoing issue.  Over the past five years,  6747 criminal cases have been reopened and retried. Among the measures the report mentions is:

  • policy documents on preventing mistaken cases;
  • the courts implementing principles of evidence-based judgments; (note that China does not yet have detailed criminal evidence rules, but see Judge Yu Tongzhi‘s remarks at a high profile criminal evidence conference on 19-20 May for the latest thinking of the SPC’s criminal divisions)
  • “no conviction in case of doubt;” (most useful discussions of this are behind academic publishers’ paywalls);
  • strictly implementing the death penalty; (as mentioned in earlier blogposts, there have been calls within China to be more transparent on the numbers, but this  decision likely needs top-level clearance);
  • improving legal aid in criminal cases, piloting in some provinces (including Guangdong) full coverage at all levels; [note Art. 21 of these regulations reveal concern about lawyers stirring up troubles, with language similar to Ministry of Justice regulations (不得恶意炒作案件,对案件进行歪曲、有误导性的宣传和评论);

Courts serve economic policy goals

This section highlighted the SPC’s accomplishments in supporting national economic policy goals.  The statistics are all for the past five years. Many of these topics have been previously discussed on this blog:

  1. Commercial cases:  the Chinese courts heard 16,438,000 first instance cases (in the last five years), up almost 54%;
  2. the SPC promoted bankruptcy trials, including developing a national bankruptcy information platform (limited information available–related blogpost here); issued a policy document on transferring cases from enforcement proceedings to bankruptcy; dealt with zombie enterprises by hearing and closing 12,000 bankruptcy cases (over the last five years); issued a company law judicial interpretation; heard and closed 4,106.000 sales tcontracts and 1,320,000 real estate cases.
  3. The SPC served major economic strategies, through issuing 16 measures related to Chinese companies engaging in foreign trade and investment, and the Belt & Road. It established a coordination mechanism for the Beijing, Hebei, and Tianjin courts (blogpost here).  The northeastern courts have provided judicial services to the region’s rejuvenation (see previous blogposts on some of the many legal and social issues); Guangdong, Fujian, etc. courts have provided services to Free Trade Zones;
  4. In the area of finance-related cases, the courts have prevented and resolved financial risk (a concern of the day) by:
  • issuing a policy document on financial cases (post the 2017 Financial Work Conference, on the Monitor’s to-do list),
  • trying and closing 5,030,000 finance-related cases (including insurance, securities, and financial institution loans),
  • trying and closing 7,059,000 private lending cases, 152,000 internet finance cases;
  • struck at illegal fund-raising etc.  (no statistics).  Expect to see more cases in this area in 2018.

4. SPC has improved judicial protection of entrepreneur’s property rights by issuing 17 policy documents (the number may indicate the depth of the problem) (see related blogposts).

5. SPC has supported national innovation policy through issuing an outline on judicial intellectual property (IP) protection, hearing and closing 683,000 IP cases,  working on strategies to deal with the issue for both Chinese and foreign IP holders that in China, IP infringement is low cost but protecting IP rights is high cost, trying the Jordan case and the Huawei v. IDC case.

6.  In the area of environmental protection, the SPC has issued an interpretation on public interest litigation, and concluded 487,000 environmental civil cases, with 11,000 cases of compensation for ecological environmental damages, 1,383 cases of environmental public interest litigation initiated by the procuracy (one of my students is looking into this), and 252 environmental public interest litigation cases were filed by social organizations.

7. In foreign-related cases, the Chinese courts concluded 75,000 foreign-related commercial and civil cases (note they account for a tiny proportion of cases in the Chinese courts).  Although the SPC says that more and more foreign parties have agreed to settle disputes in the Chinese courts, Professor Vivienne Bath’s research has shown that foreign parties are often dragged into the Chinese courts because of principles in Chinese law leading to parallel proceedings.   The protection of “judicial sovereignty” has multiple implications (some explained in the linked article).  This year, after several years of drafting, the SPC has issued a set of three judicial interpretations on the judicial review of arbitration. Supporting the national strategy of increasing its maritime power, the Chinese courts have heard 72,000 maritime first instance cases.  The SPC describes the maritime courts as effectively safeguarding the country’s maritime security and judicial sovereignty.

9. On foreign judicial exchanges, the SPC has handled 15,000 international judicial assistance cases (in fact both Chinese and foreign practitioners complain about how long assistance takes); and the SPC has used international conferences to promote its international role, particularly vis a vis Belt & Road countries.

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

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

Report drafting

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

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

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

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

Executive summary (SPC section)

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

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

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

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

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

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

1. Criminal cases

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

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

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

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

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

 

 

 

 

Some quick thoughts on Shanghai’s financial court

Screen Shot 2018-04-29 at 10.38.31 AM

Financial cases (accepted/closed) in the Shanghai courts, 2010-16, 2017 cases totaled 179,000

Recently the Wall Street Journal ran a story on the proposed Shanghai financial court, which was approved on 27 April.  The topic of the Shanghai financial court deserves a greater drill down than media reports are able to provide.  Some quick thoughts follow on the proposal and what it means for Chinese court reform:

  1. Shenzhen was actually the first Chinese court to establish a specialized financial trial institution (a tribunal, 法庭) in December, 2017 at the Qianhai Court, but presumably because the Supreme People’s Court (SPC) has greater flexibility in experimenting with new institutions in Qianhai, the SPC did not need to obtain approval from the National People’s Congress to establish it. The Shanghai financial court will be established as an additional intermediate court in Shanghai and the first financial court.
  2. The concept of a financial court in Shanghai has been mooted in Shanghai for almost 10 years (not two years, as stated in this press report), with Lv Hongbing, chair of the Grandall Law Firm (Deputy
    Director of the All China Lawyers’ Association) Gui Minjie, former chair of the Shanghai Stock Exchange among its proponents.
  3. Although President Zhou Qiang mentioned the need to bolster the international influence of Chinese justice in finance, Belt & Road, and the goal of establishing Shanghai as an international financial center by 2020, a white paper (from which the charts in this post are taken) issued by the Shanghai courts in 2017 indicates that three quarters of Shanghai’s financial cases in 2016 involved bank cards.  According to my informal discussions with lawyers in the market, more sophisticated financial institutions/funds often include arbitration clauses in their contracts, as can be seen from reports on arbitral enforcement actions in China.
Screen Shot 2018-04-29 at 10.44.09 AM

76.51% bank card disputes; 15.27% financial loan disputes;3.14% finance leasing disputes; 2.37% insurance disputes; 1.65% securities/futures disputes; 1.06% others

4.  The proposal is linked to last year’s financial work conference and the SPC policy document (关于进一步加强金融审判工作的若干意见, Some opinions concerning the further strengthening of financial trial work) to implement it, which called for work on establishing specialized financial institutions within the courts (the reporter who wrote it “is unlikely that other parts of China will have specialised financial courts” was likely unaware of this. This is part of the increasing professionalization and specialization of the Chinese courts.  Point 28 of the SPC policy document stated:

28.  According to the special characteristics of financial cases, explore the establishment of specialized financial trial institutions. According to the location of finacial institutions and the numbers of financial cases, in areas where financial cases are relatively concentrated, select some courts to establish financial divisions (tribunals), explore implementing centralized jurisdiction of financial cases.  In other intermediate courts where there are a relatively large number of financial cases, according to the case situation, more specialized financial tribunals or financial collegiate panels may be established.

28 . 根据金融案件特点,探索建立专业化的金融审判机构。根据金融机构分布和金融案件数量情况,在金融案件相对集中的地区选择部分法院设立金融审判庭,探索实行金融案件集中管辖。在其他金融案件较多的中级人民法院,可以根据案件情况设立专业化的金融审判庭或者金融审判合议庭。

5.   Also indicating that the SPC looks to foreign jurisdictions when establishing Chinese institutions, in his statement to the NPC Standing Committee, President Zhou Qiang explicitly mentioned financial dispute resolution in the United States, United Kingdom,  UAE (Dubai), and Kazakhstan (从世界范围来看,英美等发达国家和阿联酋、哈萨克斯坦等新兴市场国家均建立了专门的金融司法体系).

6. The proposal is linked to the SPC’s diversified dispute resolution policies, particularly in strengthening links between stock exchange and other financial institution dispute resolution and the courts.

7. Judges for the court are to be selected from existing judges in Shanghai and possibly from the legal profession.  As I wrote late last year and last month, recruiting lawyers and other legal professionals to the judiciary mentioned as one of the judicial reforms, has proved to be more difficult than it would otherwise appear to an outsider.  It is unclear what the turnover of middle ranking judges with expertise in the financial sector in Shanghai is, although they would fit the profile of judges who leave the judiciary. The court may be able to retain judges with expertise who might have otherwise decided to leave, because there will be additional promotions available as court president, vice president, etc.

8.  In his statement to the NPC Standing Committee, President Zhou Qiang mentions that the new financial court will have centralized jurisdiction over financial disputes (civil, commercial and administrative, not criminal), foreshadowed in the SPC policy document mentioned above and describes the court’s jurisdiction in some detail. The NPC Standing Committee decision states that the SPC will issue a detailed document on the jurisdiction of the Shanghai financial court, that the financial court will hear civil, commercial and administrative financial cases previously heard by the city’s intermediate court and that appeals will be to the Shanghai Higher People’s Court.

Big data update on contested divorces in China

Recently, the Supreme People’s Court (SPC) Judicial Cases Research Center (最高人民法院司法案例研究院)(affiliated with the National Judicial College) issued a big data report on contested divorces in 2016-17, a follow up to their report of 18 months ago (the charts below are from the report). The report was done in conjunction with the SPC’s big data center. The Judicial Cases Research Center publishes big data reports occasionally, some in the form of this report.

As noted in earlier blogposts, the 4th Judicial Five Year Plan calls for reforms in judicial statistics:

Reform mechanisms for judicial statistics with the idea of “big data, big picture, and big service” as a guide; make a system of standards for judicial statistics that has scientific classifications and complete information, gradually building a model for analysis of empirical evidence that complies with the reality of judicial practice and judicial rules, and establish a national archive of court judgment opinions and a national center for big data on judicial information.

As I discuss in one of my forthcoming articles,  the language quoted above contains no commitment to release to the public any of this new and improved big data, but careful observation has revealed that some of the more detailed big data from the SPC big data center is being published in one of the SPC’s academic journals.

It shows that in 2017, first instance contested divorces exceeded 1,400,00, somewhat more than in 2016.

Screen Shot 2018-04-23 at 5.32.27 PMAlmost three quarters (73%)of the plaintiffs in first instance divorce cases were women.Screen Shot 2018-04-23 at 5.39.20 PM

Mostly couples sued for divorce on the basis that they no longer were compatible, and in about 15% of cases domestic violence was alleged.

Screen Shot 2018-04-23 at 5.43.42 PM.png

Domestic violence was alleged most often in Guangdong, Guizhou and Guangxi.

Screen Shot 2018-04-23 at 5.44.00 PM.png

Most of the domestic violence alleged was physical violence.Screen Shot 2018-04-23 at 5.44.43 PM

In the first instance divorce cases, 91% of the domestic violence was committed by men on women.

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Judicial interpretations & arbitration

Screen Shot 2018-04-08 at 8.35.58 PM

partial screenshot from SPC website of the most recently issued judicial interpretations

While Supreme People’s Court (SPC) judicial interpretations are unquestionably binding on the lower courts, one of the many questions that Chinese legislation does not answer clearly is the broader extent to which they are binding.  [2007 SPC regulations state that “the judicial interpretations issued by the Supreme People’s Court have the force of law (具有法律效力).  The issue poses both theoretical and practical questions and is one that I had been exploring earlier this week offline with several blog followers (and some others in the Chinese legal community), in relation to Chinese law governed arbitration.

Coincidentally on 5 April Wang Jun, former dean of the Law School of the University of International Business and Economics and senior consultant to Cyan Law (采安律师事务所) posted his analysis of a recent Chinese court case on the firm’s Wechat account that raises the issue of whether judicial interpretations are binding in a Chinese law governed arbitration (court cases, of course lack binding precedential value, as I wrote in my Tsinghua China Law Review last year).

The court case was a ruling in response to an application to cancel (set aside) an arbitral award of the Shangrao [Jiangxi] Arbitration Commission, one of the 250 or so domestic arbitration commissions, in a private lending dispute. The parties that applied to cancel  the award alleged that the arbitral tribunal’s failure to apply the cap on interest in the Supreme People’s Court 2015 interpretation on private lending evidenced that the arbitral tribunal had twisted the law in arbitration.

The court ruled:

the arbitral award is the result of the independent judgment of the arbitration tribunal. If it finally determines that there is a gap between the principal and interest of the loan owed by …[the debtor] and the judicial interpretation, that is within the scope of the arbitral tribunal’s understanding and application of law, not an act of twisting the law in arbitration. Moreover…[the applicants] did not provide this Court with evidence that the arbitrators had sought or accepted bribes, committed malpractices for personal benefits or perverted the law in the arbitration. Therefore, [the applicants] application ton cancel the arbitral award lacks a factual and legal basis. This Court does not support it according to law.

 Wang Jun (and his team) commented:

Whether the judicial interpretations of the Supreme People’s Court as a matter of course apply to arbitration cases has always been a controversial matter. We believe that judicial interpretations are what the Supreme People’s Court has promulgated regarding how specifically to apply the laws in the courts’ trial [adjudication] work. It is limited to court trials [adjudication] and does not necessarily apply in arbitration cases. And Article 7 of the Arbitration Law expressly provides that arbitration should be based on facts, in line with the law, fair and reasonable settlement of disputes. Therefore, it can be argued that arbitral tribunals do not necessarily have to be bound by the judicial interpretation of the Supreme People’s Court when hearing cases.

On the issue of applying judicial interpretations in arbitration

The initial response to my question of whether judicial interpretations are binding was that views differ among (Chinese) arbitrators, but that it is an issue arbitrators keep in mind because of the power of courts to review arbitral awards. A number of senior Chinese arbitrators, who have heard cases both inside and outside China, further shared their views with me.  One commented that because judicial interpretations in China serve as an important source of interpretation of law, as more detailed and convincing guidance on how Chinese legislation should be applied, that he usually followed (applied) judicial interpretations of Chinese substantive law in arbitration. He distinguished the rare case where he might think that the judicial interpretation was wrong.  Another arbitrator commented that in his experience in Chinese law governed arbitrations, judicial interpretations were considered binding.  A third prominent arbitrator sought to distinguish domestic arbitrations from foreign-related and international arbitrations, where the standards of review were different.

Is practice any different when non-Chinese arbitrators are sitting as arbitrators? Does it make a difference if the arbitration is seated outside of [mainland] China, or does it depend?  Those with further information, please share what you know through the comment function or by Wechat or email.

 

 

 

Public-Private Partnership Disputes in the Chinese courts

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A team of researchers from the Jiangsu Higher People’s Court #1 Civil Division recently published an article on difficult legal issues relating to public-private partnerships (literally government/social capital cooperation) (PPP) in the Journal of Law Application (the Journal) (法律适用), # 17, 2017.  The Journal is one of China’s core legal journals (among the most prestigious academic law journals).  The National Judges College is affiliated with the Supreme People’s Court (SPC).  

The data on which the researchers’ analysis was based was the results of a search of the official Supreme People’s Court (SPC) database (裁判文书网),  using the keywords  “BOT” and  “PPP”.   Their search (end date April 30, 2017) found 493 BOT-related decisions and 20 PPP-related decisions.  The article relates to both BOT and PPP projects and uses the term PPP to include both.

Data on PPP/BOT disputes

  1.  BOT/PPP disputes are increasing

    1. BOT cases
2013 2014 2015 2016
Concluded cases 21 115 107 183

From 2013 to 2016, BOT disputes increased 71%.

2. PPP cases: not large number currently but increasing yearly.

2015 2016
Cases# that been concluded 4 16

Wide range of industries are involved in PPP disputes

China’s official PPP projects include a large number of industries such as energy, transportation, water conservancy construction, etc (can be found on http://tzs.ndrc.gov.cn/zttp/PPPxmk/xmk/). PPP disputes have largely focused on heating, sewage treatment, road engineering, station project, etc.

Type of PPP cases 

BOT cases:

Type of cases Civil Cases Administrative Cases Criminal Cases
85.54% 2.7% 11.76%

Civil cases mainly include contract, property, tort and financial disputes, among which contract disputes account for 78.22%.

Type of the contract cases (78.22%) Construction Project dispute Heating contract Loan Lease Sales
21.61% 13.92% 13.19% 7.69% 7.33%

PPP cases:

Type of cases Civil Case Administrative Cases Criminal Cases
# 11 5 4

Most civil cases are construction project disputes.

 parties to PPP cases

PPP disputes involve multiple legal relationships and parties, including the government, private investors, the project company (SPV), financiers, guarantee companies, insurance companies, contractors, operators, raw material purchaser, etc. Also, with the implementation of the One Belt And One Road” strategy, disputes arising from overseas PPP projects have gradually emerged.

New issues are emerging

Because PPP is a newly-developing area, many problems are gradually emerging. New problems will continue to increase, including interpretation of the PPP contract terms, the application of the “changed circumstances” doctrine [under the Contract Law], the government’s repurchasing issue,  and the evaluation of project quality. In December 2016, National Development and Reform Commission (NDRC) and China Securities Regulatory Commission (CSRC) released Notice of the Ministry of Finance, the People’s Bank of China, and the China Securities Regulatory Commission on Issues concerning Regulating the Asset Securitization of Public-Private-Partnership Projects, which however, still cannot solve some key legal issues such as asset independence and bankruptcy isolation in terms of the insufficient SPV legislation.

Difficulties in hearing PPP cases

For a long time, the government has been used to the role of “administrator”, usually solving disputes through administrative mechanisms. It has not cared much about contracts in which it is on an equal footing with private entities. Facing PPP disputes, private entities may take irrational and non-legal means to protect their rights, resulting in further aggravated conflicts and sometimes mass incidents.

There are difficulties hearing PPP cases, considering the insufficient (PPP 立法供给不足), non-specific (没有专门的PPP法律和行政法规) and incoherent legislation (没有明确的法律规则参考). Also, courts need to consider many aspects such as the legal, economic and social impacts.

Legal risks in implementing PPP projects

Although the central and local governments are promoting PPP projects, there is virtually no related legislation. Although there are relatively few PPP disputes now, that will change as government continues to promote PPP.   Because legislation governing PPP projects is insufficient the compliance risk is inevitable.  Major legislation lacks special provisions regulating PPP:

Although the State Council has enacted guidelines on promoting PPP projects (Circular of the General Office of the State Council on Guiding Opinions on Promoting the Public-Private Partnership Mode in the Public Service Fields (关于在公共服务领域推广政府和社会资本合作模式指导意见)  they are only administrative regulations and are insufficient to protect the private sector. Meanwhile, there are conflicting policies from different national ministries and departments, which in the end not only affects the standing of PPPs and fairness, also causes high administrative costs and low work efficiency.  It is unclear what PPP is and the relationship between PPP projects and others, such concessions. Therefore there are many disagreements concerning whether a project should be considered a PPP project and what the rights of the various parties should be.

The competent authority & management mechanism for PPPs are  unclear

At present, China lacks a unified institution to govern PPP projects.  Although the state has designated the NDRC to take the lead on traditional basic infrastructure PPP projects and the Ministry of Finance (MOF) to take the lead on public services PPP projects, in reality there is crossover between the two types of projects and no clear line between them.  These projects involve  NDRC, MOF, and the authorities in charge of the relevant industry and in this situation with projects involving multiple approvals, there are no clear rules on the division of authority among authorities, and between the central and local authorities, the procedure for obtaining approvals, and whether approvals can be consolidated.

Legal infrastructure for PPP projects

PPP projects involve multiple legal fields such as tax, land, finance, insurance, and construction.  Because a coherent and detailed procedure is lacking for PPP projects, it will lead to legal risks afterwards such as whether PPP projects have tax breaks, whether the land used in a PPP project needs to be put out for bidding separately.

III. How the courts deal with PPP cases

General principles in hearing PPP cases:

  1. Balance strict application of law and promoting transactions; and
  2. Uphold the equal protection of property rights–balance the interests of the government and social capital (private sector), different parties’ interests, and the interests of the public.

Nature of PPP agreements

There are two schools of thought on the nature of PPP agreements, administrative v. civil agreements.

Validity of the PPP contract?

What if the parties argue that the PPP agreement is invalid since it may violate existing laws and administrative regulations?

  • Qualification for private sector (companies) to enter into a PPP contract
    • One view is that private sector must be qualified for construction, otherwise the PPP agreement will be invalid.
    • Another view is that private sector does not need construction qualifications, and the PPP is not invalid.
    • Authors’ view: we need to distinguish. If the PPP contract contains project construction, then the private sector shall have the corresponding construction qualification. If the contract does not contain such project construction, then the private sector does not necessarily need to have the construction qualification.
  • Problems in the bidding process
    • NDRC has released guidelines for PPP project operations – Notice of the National Development and Reform Commission on Issuing the Guiding Rules for Implementing Public-Private Partnership Projects in Traditional Infrastructure Fields (国家发展改革委关于印发《传统基础设施领域实施政府和社会资本合作项目工作导则》的通知), which provides that the private sector should be selected via relevant bidding process. Then what if the PPP contract which includes the construction project did not go through the bidding process, will that lead the invalidity of such contract?
    • Authors’ view: if the contract contains construction work, and such the contract is legally required to go through the tender process, then without such process, the PPP contract will be invalid.
  • land issues

Many PPP projects are connected with land use. What if the land was not subject to a tendering process? Will that invalidate the PPP agreement?

Authors’ view: this is controversial in practice. According to the regulation enacted by Ministry of Land and Resources 国土资源部办公厅关于印发《产业用地政策实施工作指引》的通知国土资源部办公厅关于印发《产业用地政策实施工作指引》的通知, if the PPP project concerns land use, then the process of bidding and the process of authorizing land use can be combined, therefore the courts can confirm the validity of the PPP agreement.

Enforcing government undertakings

Some local governments will make undertakings to provide certain benefits or rewards to the private sector participants. What is the legal effect of that commitment?

  • One view holds that the promise is an administrative promise and should be recognized as effective.
  • Another view is that the govern commitment is ineffective since it goes beyond the government’s powers.

Authors’ view: we need to distinguish different situations. If the government’s benefits or rewards are in violation of law, administrative regulations and mandatory regulations, such as in violation of tax laws or result in the loss of state-owned assets, then the undertaking is invalid. If the commitment does not violate mandatory laws or against the public interest, such commitment should be valid based on the principle of estoppel.

Issues related to PPP contracts

  1. Relationship between the PPP agreement and the construction contract
    • In PPP projects, the government signs the PPP project agreement with the private sector entity, and the SPV and the third party (which is designated or appointed by the private sector) signs the project construction contract. What is the relationship between these two contracts? When the PPP agreement is terminated, how do we deal with financial settlement under the construction contract?
      • One view is that in the construction contract is one part of the performance under the PPP agreement, therefore, the project construction contract is linked to the PPP agreement.
      • Another view is that the construction contract and the PPP contract have an actual connection but involve different legal relationships.
      • Authors’ view: it is necessary to see whether the PPP agreement has specifically agreed upon certain terms governing the construction contract. If not, then these two contracts shall be deemed to be independent of each other.
  2.  Bid bond issues
  • Generally, the government requires the private sector entity to provide a bond for its bid. The issue is whether the bid bond is governed by the arbitration agreement (in the main agreement).
  • One view holds that the bid bond is linked to the main contract and the arbitration clause applies to the bid bond.
  • Another view is that the indemnity obligation of the guarantor is primary and therefore not related to the main agreement, therefore the arbitration agreement is inapplicable.
  • Authors’ view: the issue of tender guarantee payment, it is related to the main contract, therefore it should be subject to the arbitration clause in the contract if there is any.

Project employer issues

  • Since it is the government and the private sector signed the PPP contract, and it is the project company and the contractor have signed the construction contract, then who is the project employer under the construction contract?
    • One view holds that the government and private sector entity are the project employers.
    • Another view is that the project company is the project employer.
    • Authors’ view: the PPP contract and construction contract are independent contracts, therefore under the construction contract, the project company should be recognized as the project employer.

 pledge of the interest in the PPP

Can a concessionaire’s rights be pledged? Considering the SPC’s guiding case No.53, the usufruct (benefits from the use rights) in a concession may be pledged and can be used as accounts receivable in the pledge registration

  • Authors’ view: the pledge should be recognized as effective under SPC’s guiding case No. 53.

Dispute settlement mechanism in PPP disputes

  • What if the parties agree to dispute resolution by arbitration or civil action in the PPP agreement?
    • Authors’ view: as discussed above, if the issue is governed under administrative law, then even if the parties agreed to arbitration or civil litigation in the PPP agreement, the agreement will not be binding and the parties must rely on administrative remedies. If the dispute is a pure contract issue, then the dispute resolution agreement between the parties shall be valid.
  • What if the parties agreed on jurisdiction?

Other Suggestions

  • Promote PPP legislation and create an the overall framework of PPP system: China should speed up the process of PPP legislation, which can learn from Legislative Guide on Privately Financed Infrastructure Projects enacted by United Nations Commission on International Trade Law, PPP Reference Guide enacted by the World Bank, PPP Handbook enacted by Asian Development Bank (ADB).
  • Clarify the PPP management mechanism and clarify the responsibilities of all parties.
  • Improve the supporting mechanisms for PPP projects.

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Many thanks to my Peking University School of Transnational Law research assistant Zhu Dianmeng (Grace) for her work on this.