Tag Archives: Arrangements with Hong Kong

How the Supreme People’s Court Serves the Greater Bay Area Strategy

Photo taken on a bridge between Hong Kong and Shenzhen, 2018

In the run-up to the 25th Anniversary of the establishment of the Hong Kong Special Administrative Region, the Supreme People’s Court (SPC) issued a report on its work (Chinese only) in support of the Guangdong-Hong Kong-Macao Greater Bay Area (GBA) Strategy 2019-2022.  The report was republished on the website of the Liaison Office of the Central People’s Government in the Hong Kong Special Administrative Region (HKSAR)),  the Liaison Office of the Central People’s Government in the Macao Special Administrative Region (Macao SAR) and in mainland Chinese media. The lack of an English (and Portuguese) translation I attribute to the need to publish the report timely.

This report contains useful information for legal professionals in Hong Kong, Macao, and those beyond as it reveals issues and concerns in the area of civil and commercial law as relations between the mainland and the two SARs become closer through the GBA Strategy. For reasons of time, I am focusing my comments on the first two sections but the rest of the report merits analysis as well. My comments are in italics.

I. Political background

The opening sentence of the report states that the development of the  Greater Bay Area is a national strategy personally devised, personally planned, and personally driven by President Xi Jinping. The report sets out how the judicial functions of the courts serve and safeguard the construction of the GBA. The opening paragraph sets out some of the basic principles that the SPC is implementing, including “promoting the convergence (linkage) of judicial legal rules,  deepening judicial exchanges and cooperation among Guangdong, Hong Kong and Macao  (在推进粤港澳司法法律规则衔接,深化粤港澳司法交流合作).

The first sentence frames the political importance of the report and the work of the SPC supporting the GBA Strategy.

The SPC has issued many “judicial services and safeguards” documents setting out the role of the courts in supporting and promoting national strategies. Understanding these documents is important for understanding current issues in the Chinese courts as related to that strategy, as well as the future direction of judicial policy and related measures. This blog has analyzed quite a few of those “judicial services and safeguards” documents.  Of those many posts, GBA-related “judicial services and safeguards” documents are mentioned here and there.  The report sets out a list in the following section.

Section III will briefly address the judicial legal rules linkage and judicial exchanges and cooperation policies.

II. Mechanisms for implementing the GBA national strategy through the courts

The mechanism is “horizontal coordination and vertical implementation.”   The SPC established a GBA special working small group (专项工作小组) jointly composed of relevant SPC departments and the Guangdong Higher People’s Court (Guangdong High Court) The Guangdong High Court is the institution that has principal responsibility. It has involved all levels of the (mainland) Chinese courts.

It is the normal working practice of the SPC and other central institutions to establish working small groups to achieve important tasks that link across institutions.  It appears that a significant part of the GBA strategy involves implementing reforms within the mainland. It is not clear whether there are discussions among the Guangdong High Court and HKSAR and Macao SAR authorities on specific matters affecting the two SARs.  One assumes that to be the case.

The SPC has focused on promoting judicial cooperation mechanisms between the Mainland and Hong Kong and Macau, signed the “Meeting Minutes” (会议纪要) with Hong Kong and Macau on strengthening judicial and legal exchanges and cooperation, and instructed the Guangdong High Court and the Hong Kong Department of Justice (HK DOJ) to sign a “Guangdong-Hong Kong-Macao Greater Bay Area Legal Exchange and Mutual Cooperation Arrangement” (粤港澳大湾区法律交流与互鉴框架安排). 

It appears that the SPC is taking the lead on more major matters involving interactions with Hong Kong and Macao.  I have not been able to find all of the documents mentioned, however. It appears that this legal exchange and mutual cooperation agreement (dated 2019) should be added to the list of arrangements about which I wrote last year. I have not been able to identify the full text of this arrangement and would welcome a citation. Judge Si Yanli mentioned the Meeting Minutes and Mutual Cooperation Arrangement in her article published earlier this year.

To  implement “wherever the Party Center’s policy decisions are deployed, the judicial services of the people’s courts will be there”  (党中央的决策部署到哪里,司法服务就跟进到哪里), the SPC issued the following documents:

A version of the above slogan can be seen across central institutions, including the Central  Commission for Disciplinary Inspection, Sinograin, and the National People’s Congress.  SPC Vice President Yang Wanming has used a version before at a 2020 press conference, as I noted here.

  1. Opinion Concerning the Provision of Judicial Services and Safeguards for the Construction of the Guangdong, Hong Kong, and Macao Greater Bay Area 关于为粤港澳大湾区建设提供司法服务和保障的意见》I have not been able to locate this document.
  2.  Opinions of the Supreme People’s Court on Providing Support and Guarantee for Shenzhen to Build Itself into a Pilot Demonstration Zone for Socialism with Chinese Characteristics关于支持和保障深圳建设中国特色社会主义先行示范区的意见
  3. Opinions of the Supreme People’s Court on Supporting and Guaranteeing the Construction of the Guangdong-Macao In-Depth Cooperation Zone in Hengqin《关于支持和保障横琴粤澳深度合作区建设的意见》
  4.  Opinions of the Supreme People’s Court on Supporting and Guaranteeing Comprehensively Deepening the Reform and Opening-up of the Qianhai Shenzhen-Hong Kong Modern Service Industry Cooperation Zone (关于支持和保障全面深化前海深港现代服务业合作区改革开放的意见)

I mentioned the latter three documents in earlier blogposts.

The Guangdong High Court, taking the lead in implementing GBA judicial policy, has issued a number of operational plans and assembled a list of reform measures.  The operational plan includes: 1. three-year operational plan for promoting the construction of the GBA (推进粤港澳大湾区建设三年行动方案);

2.  Three-Year Action Plan to Support Shenzhen in Building an Experimental Demonstration Zone for Socialism with Chinese Characteristics(支持深圳建设中国特色社会主义先行示范区三年行动方案)

3.  A list plus ledger of 46 reform measures “清单+台账”方式推动46项改革举措

Other measures that GBA-area  local people’s courts have taken:

  1. centralized trial of foreign-related, Hong Kong, Macao and Taiwan civil and commercial cases  (this is a theme in professionalizing the hearing of foreign-related cases);
  2. Trying out a trial model of “professional judges + Hong Kong and Macao jurors  + industry experts”; (it is not clear how much this is actually happening in the Covid era, with strict border controls still ongoing);
  3. Accumulate practical experience that can be promoted and replicated elsewhere such as the centralized jurisdiction of Hong Kong and Macao-related cases, separation of complicated and simple cases, and expanded application of laws.
  4. The Higher People’s Court of Guangdong Province has released 60 typical cases of cross-border disputes in the Guangdong-Hong Kong-Macao Greater Bay Area for three consecutive years, providing professional and clear legal guidance for parties in the three places. See my earlier blogpost on SPC typical cases.
  5. The Shenzhen Intermediate People’s Court established the first administrative trial center in the Mainland to implement centralized jurisdiction of administrative cases and took the lead in exploring the transfer of some administrative cases involving Hong Kong and Macao to the jurisdiction of grassroots courts. The People’s Court of the Guangdong-Macao Deep Cooperation Zone in Hengqin was inaugurated,

This last list of matters is highlighting the accomplishments of the GBA courts in implementing judicial reform, especially in mechanisms that can be replicated elsewhere in the Chinese court system.

III. Judicial Legal Rules Convergence and Judicial Exchanges and Cooperation Policies

Section 3 of the report addresses this topic, focusing primarily on what is termed judicial exchanges and cooperation policies (司法交流合作), mentioning that the SPC concluded three arrangements and one judicial assistance document (司法协助文件) with the HKSAR and two arrangements with the Macao SAR.  Because I have previously written about this topic in several earlier blogposts, I will instead focus on the topic of judicial legal rules convergence (linkage, 司法法律规则衔接). The report mentions very little about this.

As mentioned above, Judge Si Yanli published an article earlier this year (2022) in China Law Review(Research into Difficult Issues of Legal Rules Convergence in the Greater Bay Area, Focusing on the Diversified Dispute Resolution Mechanism as an Entry Point中国法律评论, 粤港澳大湾区法律规则衔接疑难问题研究——以多元化纠纷解决机制为切入点 ) with very useful insights for understanding what is meant by judicial legal rules convergence (linkage) and the areas of law that are under consideration. What she discusses in her article are not official statements of policy.

Among the many suggestions for rule convergence in her article are the following: concluding civil and commercial judicial assistance agreements between (or among) Guangdong, Hong Kong and Macao. Among the areas she suggests a GBA judicial assistance agreement would be useful is the service of process and creating a mechanism bringing the entire process online. She also suggests that the three jurisdictions cooperate in areas of law outside of the arrangements that have been reached, such as inheritance and intellectual property.  She also suggests that Hong Kong and Macao invested entities in the GBA be able to choose Hong Kong or Macao law for contracts and Hong Kong or Macao arbitral institutions for arbitration. Note that an article on the website of the Hong Kong Department of Justice mentions that this is being piloted. 

Judge Si very usefully proposes a GBA agreement on the enforcement of mediation agreements that would draw on the Singapore Mediation Convention, discussing the many obstacles in the way of that occurring, including gaps in Chinese (mainland) mediation legislation.  Hong Kong official media has reported on work on GBA mediation platform, with ongoing work on mutual recognition of qualifications, accreditation, and mediator code of conduct.

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 As I have previously commented, the judicial (and more broadly, the legal) aspects of the GBA merit more attention than they have received thus far.  But understanding the documents of the GBA has its challenges. As mentioned previously,  some documents have not yet been made public.  The larger challenge in understanding them for local Hong Kong (and I assume Macao students) is that it requires the reader to be familiar with the language of (mainland) Chinese official documents.   

The GBA is likely to have an impact on the careers of at least some students in the GBA area law schools, including my own students at the Peking University School of Transnational Law (in Shenzhen), as well as in Hong Kong’s and Macao’s three law schools, so I look forward to some group of students taking up the challenge.

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Finally, I will post occasionally & shorter blogposts from now on, while I work on several articles that have deadlines this summer.

 

Mainland-Hong Kong Insolvency “Arrangement” Forthcoming

For those for whom the timing is right, tomorrow’s (14 May afternoon) event gives the interested person an opportunity to watch a discussion in real-time concerning a new hard-law legal “Arrangement”  (it is now clear that the document is not so entitled) between the Mainland (presumably the Supreme People’s Court (SPC) and the Hong Kong Special Administrative Region (Hong Kong SAR) on bankruptcy (insolvency) law and learn about relevant recent updates. The document is the Conference Summary [Meeting Minutes] on Procedures for the Mutual Recognition of and Assistance in Insolvency Procedures by the Courts of the Mainland and the Hong Kong SAR (内地与香港特别行政区法院相互认可和协助破产程序的会谈纪要).  At the same time, the SPC is releasing an Opinion approving pilot projects to implement the Conference Summary  最高人民法院关于开展认可和协助香港特别行政区破产程序试点工作的意见.  A pilot project approach is usual when the SPC wants to test whether procedures are workable before implementing them nationwide.

social media posting by one of Hong Kong’s leading barristers chambers describes it as the “most momentous cross-border insolvency development in a generation. ”  Although it is not so stated, I surmise (by reviewing the press conference announcing the Supplemental Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region” (the Supplemental Arrangement (关于内地与香港特别行政区相互执行仲裁裁决的补充安排), that the official signing of the new insolvency Arrangement will be held in the morning, after which a press conference will be held. My guess, based on that press conference, is that  SPC Vice President Yang Wanming (杨万明副院长) will sign on behalf of the SPC and that Hong Kong SAR Secretary for Justice Teresa Cheng will sign on behalf of the Hong Kong SAR Government.  The link to the SPC’s press conference indicates that Vice President Yang Wanming will in fact sign and that Judge Si Yanli will participate in the signing ceremony and the press conference.

According to the social media posting above, Mr. Justice Jonathan Harris, current Companies and Insolvency Judge of Hong Kong’s High Court, will be delivering a keynote speech during the afternoon Forum announced above.   My guess (without any factual basis) is that Judge Si Yanli will give a keynote as well.  The Arrangement is likely to have involved a great deal of hard work on the part of all involved in the drafting.

Justice Harris’s judgments contain valuable insights into some of Hong Kong’s cross-border insolvency-related issues, such as the intersection between stock exchange listings and insolvency.  His decision in the Winding-Up Proceedings of China Huiyuan Juice Group is a good example:

As I explained at the outset of this decision the court is hearing many petitions to wind-up listed companies whose businesses are in the Mainland.  Since the court resumed hearings in May more than half the petitions I have heard have involved listed companies. Remarkably petitions to wind-up Hong Kong incorporated companies operating domestic businesses are currently a minority…  What is now quite clear is that the use of the group structures I have described present difficulties.  It will be useful if I describe these and what I anticipate will be their impact for creditors and shareholders in Hong Kong and other jurisdictions….

As will be apparent from this decision the practice has developed of Mainland businesses listing in Hong Kong using corporate vehicles which have no connection with the Mainland, which is commonly the COMI [Center of Main Interest], , or Hong Kong where the business is to be listed.  The structure is made more complicated by group architecture which involves inserting between the listed company and the mainland companies at least one, and my impression is commonly more than one, intermediate subsidiary incorporated in a different offshore jurisdiction.  As this decision demonstrates this structure creates a significant barrier to steps being taken by creditors and shareholders to enforce rights using the courts of Hong Kong, which is the legal system that they have probably assumed they will be able to access if they need to take steps to enforce their legal rights against a company listed here.

As I have previously written,  cross-border bankruptcy (insolvency) law is an area of particular focus of the SPC.  Phrases in two 2020 SPC Opinions signal this Arrangement. Article 16 of the November 2020 SPC Opinion  on Providing Support and Guarantees for Shenzhen to Build Itself into a Pilot Demonstration Zone for Socialism with Chinese Characteristics (最高人民法院关于支持和保障深圳建设中国特色社会主义先行示范区的意见) states:

Promote the establishment of a cross-border bankruptcy recognition and assistance mechanism推动建立跨境破产认可与协助机制.

Additionally, Article 12 of the September 2020 SPC  Guiding Opinions on Further Expanding People’s Court Service Safeguards for Expanding the Opening Up to the World (Open Policy 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) contains the following (translation thanks to Chinalawtranslate):

12. Properly handle cross-border bankruptcy [insolvency], financial, and enforcement cases. Adhere to the principle of equal protection for similar claims, actively participate in and promote the formulation of international treaties on cross-border bankruptcy [insolvency], improve the coordination mechanisms for cross-border bankruptcy [insolvency] and protect the rights and interests of creditors and investors in accordance with the law…12.妥善处理跨境破产、金融、执行案件。 坚持同类债权平等保护原则,积极参与和推动跨境破产国际条约的制定,完善跨境破产协调机制,依法保护债权人和投资人权益。

This single issue illustrates the close reading skills needed to understand SPC Opinions.

Further analysis of the implications of the Arrangement will need to follow its release.

Soft and Hard Law Arrangements & Other Agreements Between the Mainland Authorities and the SAR Governments

1st Joint conference meeting on the Hong Kong BRI Arrangement

If you have never heard of hard and soft law  Arrangements (安排) and other agreements between Mainland authorities and the Hong Kong and Macau Special Administrative Region (SAR) governments, do not be surprised.  The classification is my own and I see it as useful to capture the types of Arrangements and other soft law agreements that have been signed between certain Mainland authorities and the Hong Kong SAR and the Macau SAR, as well as Arrangements between the two SARs. This blogpost highlights several of the more important soft law Arrangements and other agreements between the mainland authorities and the SAR governments.  

This classification harmonizes with the analysis of Professor Wang Heng of the University of New South Wales concerning Belt & Road Initiative Agreements.  

Definition of Arrangements

Although I have written previously about Arrangements between the Supreme People’s Court (SPC) and the Hong Kong Special Administrative Region (SAR) Government, I have not seen an official definition of “Arrangement.”     It appears to be used as a form of agreement between certain Mainland authorities  (intended to include institutions such as the Supreme People’s Court and the Standing Committee of the National People’s Congress as well as ministries and commissions under the State Council ( and it seems some counterparts at the provincial level) and the government of the Hong Kong or Macau SAR.  Some are between the two SARs. I have not seen an equivalent to the Law on the Procedure for the Conclusion of Treaties.  Perhaps guidance exists internally. I surmise (from my blogpost on the recent SPC Arrangement) that the Hong Kong and Macau Affairs Office supervises Arrangements.

What I had not realized until recently that Arrangements are far more numerous and cover a broader range of areas than most legal professionals outside of China (including me) are generally aware of.   Both types of Arrangements can include affiliated measures, such as joint [steering] conferences 联席会议 (related to one of my recent posts ) and yearly implementation measures, such as agreed areas for cooperation.   

Hard and Soft Law Arrangements

 The “Hard Law Arrangements” often have content that is somewhat analogous to a treaty between sovereigns-that is, they have normative content, while the “Soft Law Arrangements” have more soft law content, some more analogous to the ones Professor Wang Heng discussed in the BRI content, while others have language found in domestic Chinese government documents.  I will borrow the definition that Professor Wang Heng uses in his article: soft law refers to quasi-legal obligations or law-like promises that are not legally binding but may affect state behavior.  His definition draws on earlier work, such as that of my colleague Professor Francis Snyder.  (My colleague has a forthcoming book chapter on soft law.)

Professor Wang Heng describes Belt & Road Initiative (BRI) primary agreements (soft law agreements) as largely emphasizing project development rather than rule development. This is also seen to some extent with “soft law Arrangements.” 

“Hard Law” Arrangements

“Hard Law Arrangements” and other “hard law” agreements between mainland authorities and the Hong Kong and Macau SARS are well-known, so this section only mentions a few of the most prominent: 

Professor Henry Gao noted in an article that during the negotiations leading to the conclusion of the CEPAs, it had been suggested that they should be called free trade agreements (FTAs) but they were named  “Closer Economic Partnership Arrangements” instead. He commented that in substance, the two CEPAs are no different from the other FTAs around the world.

For those interested, the Ministry of Commerce (MOFCOM) has a webpage that consolidates the related Macau supplemental agreements.

  •  Dispute Resolution Arrangements

Hong Kong’s Ministry of Justice has a webpage (available in multiple languages) with links to arbitration-related Arrangements as well as recognition and enforcement of civil and commercial judgments Arrangements.  The webpage also links to Arrangements involving other Hong Kong SAR government departments. It appears that some agreements mentioned on that webpage may be soft law documents, but I have not seen the full text of some of these documents and so cannot confirm.

An Arrangement on the Mutual Recognition and Enforcement of Arbitral Awards between the Supreme People’s Court and the Macau SAR Government also exists.

Many other hard law Arrangements have been signed, but I have not seen a single repository of these documents. It is my hope that the Hong Kong Government can do so.

Soft Law Arrangements and Other Soft Law Agreements

It appears that less attention has been paid to soft law Arrangements and other soft law agreements.  There are also memoranda of understanding (MOU), with analogous usage to those in BRI projects. A number of the important ones are highlighted below.

  • July, 2017 National Development and Reform Commission, People’s Government of Guangdong Province, Government of the Hong Kong Special Administrative Region, Government of the Macao Special Administrative Region Framework Agreement  on Deepening Guangdong-Hong Kong-Macao Cooperation in the
    Development of the Greater Bay Area Greater Bay Area (GBA Framework Agreement)

This Framework Agreement is a soft law agreement that links hard and soft law content. In discussing BRI soft law agreements, Professor Wang Heng mentions Project-Linked Agreements and Mechanism-Creating Agreements and mentions that some combine both. The GBA Framework Agreement mentions some of the above hard law Arrangements, with a great deal of new soft law content aimed at promoting the development of the GBA.  It flags what was then forthcoming BRI Arrangements. Among the goals cited:

deepen co-operation between the Bay Area and related countries and regions in… legal and dispute resolution services… and to build an important support area for pursuing the Belt and Road Initiative.for Hong Kong…

establish a centre for international legal and dispute resolution services in the Asia-Pacific Region…

This is the document that attracted my interest in “soft law Arrangements.”  Several articles relate to developing Hong Kong’s role in dispute resolution, such as:

2.To support Hong Kong in developing high value-added maritime services, including…maritime law and dispute resolution,

26. To support Hong Kong in establishing itself as a centre for international legal and dispute resolution services in the Asia-Pacific region to provide relevant services for the Belt and Road Initiative.

The Hong Kong BRI  Arrangement links to Article 34 of the SPC’s 2019  Opinion On Further Providing Judicial Services and Guarantees by the People’s Courts for the “Belt and Road” Initiative (BRI Opinion #2). That article contains language about supporting the Hong Kong SAR to develop as a regional legal service and dispute resolution center and Hong Kong playing a more important role in jointly developing the BRI:

The development of the regional legal service and dispute resolution center of the Hong Kong Special Administrative Region (“Hong Kong SAR”) shall be further supported, the cooperation between arbitration institutions in Hong Kong such as Hong Kong International Arbitration Centre and arbitration institutions in the Mainland, the arbitration institutions in the Hong Kong SAR shall be introduced to the construction of the “one-stop” dispute resolution platform of international commercial courts… and the Hong Kong SAR shall play a more important role in the joint development of the “Belt and Road” Initiative. 进一步支持香港特别行政区区域法 律服务和纠纷解决中心的建设,支持 香港国际仲裁中心等仲裁机构与内地 仲裁机构的合作,在国际商事法庭 “一站式”纠纷解决平台建设中适当 引入香港特别行政区仲裁机构…不断发挥 香港特别行政区在共建“一带一路” 中的重要作用。

The Arrangement establishes a joint conference mechanism (that features in a number of Arrangements) comprising responsible officials from the National Development and Reform Commission (NDRC), the Hong Kong and Macao Affairs Office of the State Council and other relevant departments as well as senior representatives of the HKSAR.  The SPC has participated in at least two of these meetings, but from the reports on the meetings, does not appear to be a joint conference member institution.

The  Hong Kong BRI Arrangement could be linked to the 2019 Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region and the 2020 Supplemental Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong SAR. Although  BRI Opinion #2 explicitly restates the Chinese government’s desire that more international commercial disputes (including BRI ones) be resolved in China, this clause is also a recognition that the Hong Kong International Arbitration Centre is often selected in contracts between Chinese companies and foreign companies, including in BRI disputes, as evidenced in Professor Matthew Erie‘s recently published article.

Under the Arrangement, the two sides have agreed, in related documents, upon major areas of work and in 2020, allocation of responsibilities and have established an annual joint conference. It is unclear whether a similar set of documents exist for the Hong Kong BRI Arrangement.

The Macau and Hong Kong BRI Arrangements are quite different from one another and deserve further analysis. Under the Macau BRI Arrangement, for example, the Macau SAR Government undertakes to be a platform for liaison with Lusophone countries.

It is unclear why there is no courtesy English translation of this Arrangement (as there is for the Hong Kong BRI Arrangement). The content of this Arrangement provides insights into plans for Hong Kong and the Mainland to cooperate in the area of science and technology, but time does not permit further analysis.

A final comment is that it appears to be difficult to locate the full text of some of the soft law Arrangements reported.

More to Come?

I surmise that the Hong Kong and Macau SARs’ futures will involve more hard and soft law Arrangements and other agreements with the Mainland.  The topic of these agreements deserves closer attention. I hope that someone with an interest, the time, and the language skills can take this research forward. 

 

Arrangements and the Supreme People’s Court

SPC Press conference following the Supplemental Arrangement signing, Judge Si 2nd from left

On 27 November, the Supreme People’s Court and the Hong Kong SAR Government held a ceremony in Shenzhen at which the two sides signed the Supplemental Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the Hong Kong Special Administrative Region” (the Supplemental Arrangement (关于内地与香港特别行政区相互执行仲裁裁决的补充安排). It supplements the original Arrangement Concerning Mutual Enforcement of Arbitral Awards between the Mainland and the HKSAR which was signed on 21 June 1999 and came into effect on 1 February 2000 (1999 Arrangement). The SPC also issued 10 related typical cases (典型案例) in both Chinese and English versions, the first time the SPC has done so for an arrangement.

SPC arrangements with the Hong Kong SAR are considered  judicial assistance documents.  As Hong Kong is part of China (one country-two systems),  the view is that judicial assistance between the Mainland and Hong Kong can be broader and closer (and so differs from international judicial assistance).

After the Supplemental Arrangement becomes fully effective, it will ease the implementation of a number of arbitration-related matters between the Hong Kong SAR and the (mainland) Chinese courts.  Herbert Smith Freehills and other law firms and barristers’ chambers) have published insightful summaries of the Supplemental Arrangement. 

This blogpost discusses some issues related to SPC arrangements (with the Hong Kong and Macao SARs), drawing on the remarks made by Judge Si Yanli, one of the deputy heads of the SPC’s Research Office at the press conference following the ceremony.  The Research Office is a unique institution of the SPC.  It does not directly hear cases, but is often involved in a broad range of issues.  A 1995 SPC document describes it as a  “comprehensive operational department.”

Judge Si is responsible for handling Hong Kong and Macau related matters , who would have headed the team negotiating with the HKSAR Department of Justice on these arrangement Judge Si is well-known to the Hong Kong international arbitration community.  She has spoken at Hong Kong Arbitration Week events in recent years, impressing all who have heard her speak with her insightful presentations.

Legal Framework for Arrangements

The legal framework for this arrangement, and the other previous ones concluded between the two jurisdictions is Article 95 of the Hong Kong Basic Law:

Article 95
The Hong Kong Special Administrative Region may, through consultations and in accordance with law, maintain juridical relations with the judicial organs of other parts of the country, and they may render assistance to each other.

Fitting Arrangements into the Chinese legal landscape

A single sentence in Judge Si’s press conference called attention to a procedure that is rarely discussed, at least in English–fitting arrangements into the Chinese legal landscape.  Judge Si mentioned that for the Supplementary Arrangement to be effectively implemented on the mainland, it must be transformed into a judicial interpretation. Although Judge Si did not set out the reasons that the SPC does so, it is understood that if implemented in this way,  judges in local Chinese courts who need to implement an arrangement can issue rulings or judgments  that cite the relevant provisions of an arrangement that have been transformed into a judicial interpretation.  

The effective implementation of the Supplementary Arrangement in the Mainland needs to be transformed into judicial interpretation, and for its effective implementation in Hong Kong, it needs to be transformed into local legislation. In the Mainland, on November 9, the 1815th meeting of the judicial committee of the SPC passed the “Supplementary Arrangement” and agreed to transform it into a judicial interpretation;补充安排》在内地的生效实施需要转化为司法解释,在香港的生效实施需要转化为本地立法。在内地,11月9日,最高人民法院审判委员第1815次会议已审议通过《补充安排》,并同意将其转化为司法解释;

Drafting 

The drafting of the Supplemental Arrangement involved input from relevant authorities, among them the Legislative Affairs Commission (LAC) of the National People’s Congress.  That is clear from this statement in Judge Si’s press conference. 

The successful signing of the “Supplementary Arrangement” is due to  the strong guidance of the Legislative Affairs Commission, of the Standing Committee of the National People’s Congress, the Hong Kong Basic Law Committee, the Hong Kong and Macao Affairs Office of the State Council and other relevant central authorities, as well as the strong support of the judicial and legal circles in the two places.《补充安排》的成功签署离不开全国人大常委会法制工作委员会、香港基本法委员会,国务院港澳事务办公室等中央有关部门的大力指导以及两地司法法律界的有力支持.

Soliciting views from relevant authorities is usual practice when the SPC drafts judicial interpretations. In this way the judicial interpretation that the SPC issues draws on specialist knowledge in the relevant authorities and enables the judicial interpretation to reflect a harmonized approach.  As to the importance of the SPC consulting the LAC of the National People’s Congress, that institution will review the final version of a judicial interpretation after the judicial committee of the SPC approves it and files it with the Standing Committee of the National People’s Congress. Again, it enables the judicial interpretation to reflect an approach harmonized between the SPC and the LAC.

Further thoughts

As the Chinese court system evolves to become increasingly integrated with international treaties and conventions, we are likely to see aspects of international conventions or bilateral judicial cooperation documents converted into or implemented through judicial interpretations, and the strong guidance of the LAC, the Ministry of Foreign Affairs, and other relevant central authorities making it possible.