One of the lesser known outcomes of Xi Jinping’s trip to the United States is the commitment by the United States government to work with China on judicial reform.
The official White House press release (mirrored in statements by the Chinese Ministry of Foreign Affairs) states:
the United States and China commit to conduct high-level and expert discussions commencing in early 2016 to provide a forum to support and exchange views on judicial reform and identify and evaluate the challenges and strategies in implementing the rule of law. U.S. participants are to include leading members of the U.S. judiciary, U.S. government legal policy experts, and officials from the Departments of Commerce and Justice and the Office of the United States Trade Representative. Chinese participants are to include officials from the Central Leading Group on Judicial Reform, leading members of the Chinese judiciary, and Chinese government legal policy experts. This dialogue is to result in an improvement in the transparency and predictability of the business environment. This dialogue does not replace, duplicate or weaken existing regular bilateral legal and human rights dialogues between the United States and China.
This statement deserves more attention from the legal community than it has received so far. Some brief comments below:
- It is good for China and the rest of the world for Chinese judicial reform to be the subject of inter-government dialogue aimed at positive results. Whatever improvements eventually result from this dialogue will eventually benefit both Chinese and foreign litigants.
- The Communist Party’s Central Leading Group on Judicial Reform is explicitly named as one of the participants from the Chinese side. It approves major Chinese judicial reforms (the text of the 4th five year judicial reform plan evidences that), so it makes sense for it to have one or more representatives involved in future dialogue (although technically it is not a “judicial institution.”
- It is likely to include leading members of the Supreme People’s Court, but is unclear what other institutions will be involved. Do the legal policy experts of the Chinese government also include the State Council’s Legislative Affairs Office?
- The question is what issues the dialogue will focus on. It is clear that the intent is to focus on technical legal issues, but which ones? Perhaps the Law Committees of Amcham China and Amcham Hong Kong can draft a list of issues for the US government agencies involved in the dialogue to consider.
- Among the issues I would nominate would be those related to better integrating the Chinese courts with its counterpart institutions in the rest of the world. The Supreme People’s Court One Belt One Road (OBOR) opinion (see my earlier blogpost) mentioned that China was looking to expand bilateral and multilateral mutual judicial assistance arrangements, for better delivery of judicial documents, obtaining evidence, and recognition and enforcement of foreign court judgments. My fellow blogger, Mark Cohen, recently wrote about the issues relating to the problems of litigants in the US courts seeking evidence relating to Chinese counterfeiters. The number of cases in foreign courts involving Chinese commercial activity is likely to increase and better judicial assistance structures should be put in place.
- Related to the previous issue would be improving the international standing and influence of the Chinese courts (as the OBOR opinion states is a goal) in a positive way, by being a more neutral forum for cross-border disputes. Statements such as the one made by Chinese judges in the Huawei vs. InterDigital case (pointed out by Mark Cohen in a recent presentation) do not give foreign litigants confidence that their cases will be heard fairly in Chinese courts. The judges wrote: “Huawei is good at using antitrust laws as a counter-weapon, which other Chinese companies should study…. domestic enterprises [should] break through technical barriers in the development of space for their own gain, through bold use of antitrust litigation.”
If you have further issues to add to the list, please use the comment function!