As most readers of this blog know, developing foreign-related rule of law is a priority for the Chinese government. President Zhang Jun told Supreme People’s Court (SPC) leaders at the beginning of 2025 that the Party Center places a great deal of importance on the construction (development) of foreign-relatedrule of law (党中央高度重视涉外法治建设). What does that mean for the SPC? What has the SPC done lately? This post briefly notes some of those developments.
The SPC’s #4 Civil Division has recently established a WeChat public account entitled 中国涉外商事海事审判, as a way of better conveying developments to the Chinese professional and academic legal world. The link is to the April 30 report on the China International Commercial Court’s circuit visit to Shanghai on 10-11 April.
The China International Commercial Court (CICC) held a hearing in Shanghai’s #1 Intermediate Court on 10 April in a joint venture shareholder dispute (see the photo above). I could attend because I was scheduled to participate in a workshop at NYU Shanghai on 12 April and several people bound by protocol to remain anonymous helped workshop participants and me with the required formalities. Many from Shanghai’s “foreign-related” legal community attended the hearing, including several foreign lawyers, senior members from the Shanghai International Arbitration Center, Shanghai Commercial Mediation Center, and academics from Shanghai’s law schools specializing in foreign-related matters. Official reports on the event included the SPC’s officialwebsite, the Shanghai #1 Intermediate People’s Court WeChat account (bilingual), and the #4 Civil Division’s WeChat account. I have my views on the performance of the lawyers, but will withhold them until I know more about the length of time they had for preparation.
Unbeknownst to most, the hearing in Shanghai evidenced that the CICC was implementing part of Article 33 of the sixth judicial reform plan:
Deepen the reform of the circuit trial mechanism. Deepen the reform of the circuit court work mechanism of the Supreme People’s Court, strengthen the functions and roles of the Supreme People’s Court’s trial organs in shifting their focus downward, resolving disputes on the spot, and facilitating litigation for the parties. 强化最高人民法院审判机关重心下移、就地解决纠纷、方便当事人诉讼的功能作用。
Holding a hearing in Shanghai would be considered to be “shifting the focus of the SPC downward,” resolving disputes on the spot, and facilitating litigation for the parties.
The SPC issued 《最高人民法院关于人民法院为西部陆海新通道建设提供司法服务和保障的意见” Opinions of the Supreme People’s Court on the People’s Court Providing Judicial Services and Guarantees for the Construction of the Western Land-Sea New Corridor” along with related typical cases. An explanation of the Western Land-Sea New Corridor is here. The document designates the Chongqing High People’s Court to take the lead in establishing a “13+2” judicial cooperation mechanism among thirteen high people’s courts and two intermediate people’s courts along the corridor to cooperate in litigation services, substantive dispute resolution, enforcement linkage, application of law, talent training, etc.
SPC Justice Wang Shumei published an article in China Trial (中国审判) on foreign related matters in late 2024. Her article is a useful summary of current SPC policy on foreign-related commercial and maritime matters. One part includes:
improve the rules for jurisdiction over foreign-related cases, and properly handle international conflicts of jurisdiction arising from parallel litigation involving multiple countries in the same dispute in accordance with the law; we must firmly maintain the international order based on international law, actively participate in the formulation of international rules, carry out in-depth international judicial exchanges and cooperation, strengthen confidence in the rule of law, actively explain to the world the concepts, propositions and successful practices of foreign-related rule of law with Chinese characteristics, promote the progress of international rule of law, promote global governance in a more just and reasonable direction, and help build a community with a shared future for mankind.
The above quotation summarizes what has been said in earlier documents: resolving parallel litigation is on the agenda; the Chinese courts should tell China’s story well; the SPC should actively participate in formulating international rules (actively participating in the negotiation of the Hague Judgments Convention as an example), and all is linked to the Chinese government’s vision of global governance and the international legal order.
3. Typical cases
In late April 2025, the SPC issued a group of typical cases linked to the Western Land-Sea Corridor and the policy document mentioned above, signaling the importance of mediation, unifying standards, promoting the application of international treaties and conventions, etc.
In March 2025, the SPC issued a second group of typical free trade zone cases第二批服务保障自由贸易试验区建设典型案例
As I mentioned in an earlier post, the SPC issued typical cases protecting the rights and interests of foreign investors.
As mentioned in an earlier post, in March, 2025, the SPC issued procedures to implement the Foreign State Sovereign Immunity Law.
Forthcoming attractions
Among the forthcoming attractions of which I am aware:
The #4 Civil Division is drafting a judicial interpretation of the foreign-related part of the Civil Procedure Law, as reported in official media. Judge Guo Zaiyu, who was one of the judges of the CICC panel hearing the case at the #1 Intermediate People’s Court, chaired a meeting with scholars and experts, hosted by East China University of Political Science and Law, including some (domestic) CICC experts in Shanghai on April 11. I surmise the judicial interpretation will be issued sometime this year and it is unclear whether a draft will be released for public consultation.
2. As mentioned earlier, the 6th judicial reform five-year plan outline was issued in late December. Point 12 relates to foreign-related rule of law:
Improve the judicial guarantee mechanism for high-level opening up. Improve the foreign-related trial mechanism, strengthen international commercial trial work, and improve the connection mechanism with international commercial mediation and arbitration. Improve the judicial trial system in which the parties in foreign-related civil legal relations agree on jurisdiction and choose to apply foreign laws in accordance with the law. Improve the mechanism for accurate application of international treaties and international practices, and improve the mechanism for ascertaining foreign laws. Improve the maritime trial mechanism, promote the improvement of the maritime legal system, improve the rules for adjudicating disputes such as ship repair, cross-border logistics, shipping insurance, maritime finance, and compensation for damage to the marine ecological environment, and improve the coordination and linkage mechanism with maritime administrative law enforcement agencies. Improve the mechanism for mutual recognition and enforcement of cross-border arbitration awards and civil and commercial judgments. Improve the judicial protection mechanism for overseas interests and investments. Improve the judicial protection mechanism for overseas Chinese interests. Improve the talent training mechanism for foreign-related trials. Strengthen international exchanges and cooperation in the judicial field, and actively participate in the formulation of international rules.
It appears most of the content here is not new and has been incorporated in the policydocumentspreviously analyzed on this blog. The major exception is the detailed stress on certain maritime case principles. Why has this paragraph been incorporated in the judicial reform plan outline, when previously this type of content would more likely have appeared in a specialized policy document? As I will comment in a future article, it is representative of many articles in this judicial reform plan outline, signaling that the Party and SPC leadership attach importance to those matters.
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:
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
January, 2024, ten typical cases relating to the judicial review of arbitration 仲裁司法审查典型案例 These typical (model/exemplary) cases have attracted commentary from practitioners, see here (but note that the author of the article had not noticed that the end 2022 Conference Summary [also translated as “Meeting Minutes”] of the National Symposium on Foreign-Related Commercial and Maritime Trial Work (Foreign-Related Commercial & Maritime Law Conference Summary had clarified that arbitral awards made by overseas arbitration institutions arbitrations seated in Mainland China are regarded as foreign-related arbitral awards (rather than foreign awards), as had a previous typical case. As to why the SPC is issuing multiple typical cases concerning the same issue, repetition means that the issue is important. Other commentary that appeared in People’s Court Daily was republished on the China International Commercial Court website (Chinese version).
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 severaltimes 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!
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:
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);
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));
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);
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);
One case involving the Convention on the International Sale of Goods (CISG), #1, Exportextil Countertrade SA) and Nantong Meinite Medical Products Co., Ltd;
One case involving financial derivatives (#9, Standard Chartered Bank (China) Co., Ltd. v. Zhangjiakou United Petrochemical Co., Ltd.) ;
One equity transfer-related case (#7, a China International Commercial Court case), Zhang Moumou and Xie Moumou v. Shenzhen Aoxinlong Investment Co., Ltd;
One treaty interpretation case (#2, Nippon Property & Casualty Insurance (China) Co., Ltd. Shanghai Branch and others and Robinson Global Logistics (Dalian) Co., Ltd).
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.
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.
By Susan Finder with initial research assistance by Zhu Xinyue
President Zhou Qiang delivering the report
The Supreme People’s Court’s (SPC) October 2022 specialized report on foreign-related adjudication work (最高人民法院关于人民法院涉外审判工作情况的报告) provides an overview of the SPC’s and the lower courts’ work related to foreign-related matters over the past 10 years. This blogpost uses the term “adjudication work” to encompass the multiple functions of the SPC (see my U.S.-Asia Law Institute article for a refresher) as well as the lower courts. (My previous blogpost gives a detailed explanation of the significance of specialized reports of the SPC and other institutions to the NPC Standing Committee). The report is intended to showcase the SPC’s work in supporting Xi Jinping era fundamental changes in foreign policy, or as the concluding section words it, “vigorously serving the greater situation of the Party and State’s external policy work” (积极服务党和国家对外工作大局). An analysis of the content of this specialized report provides insights into the role of the SPC and its relationships with other Central institutions as well as the current and evolving concept of “foreign-related rule of law” (涉外法治). Concerning the link between “foreign-related rule of law” and the foreign-related adjudication work of the people’s courts, as President Zhou Qiang said: “the foreign-related adjudication work of the people’s courts is an important part of foreign-related rule of law work (人民法院涉外审判工作是涉外法治工作的重要组成部分).”
I surmise that the NPC Standing Committee requested the SPC submit a specialized report on the SPC’s foreign-related work because the political leadership is prioritizing developing China’s foreign-related body of law and takes the view that SPC expertise is needed to that end. As in any legal system, issues that come before the Chinese courts highlight the gaps in current legislation (broadly defined).
1. Overview of the Report
The report covers all areas of SPC work–criminal, civil and commercial, maritime, intellectual property, administrative, and other areas, as well as the recognition and enforcement of foreign judgments, recognition and enforcement of foreign arbitral awards, and other forms of international judicial assistance. Because cases involving Hong Kong, Macau, and Taiwan are considered by reference to the principles for foreign-related cases, the report provides highlights of those developments as well.
Following some background material, this blogpost follows the structure of the report and therefore the blogpost is much longer than usual. A more comprehensive analysis of many aspects is found in my “never-ending article,” currently on its meandering way to publication.
2. Drafting of the Specialized Report
Because most of the cases involving foreign-related matters tend to be in the commercial area generally (incorporating maritime, recognition and enforcement of foreign judgments and arbitral awards), it is likely that the #4 Civil Division took the lead in drafting the report, worked closely with the International Cooperation Bureau, and involved other divisions and offices of the SPC as needed, including those working on criminal law issues. Although this report appears to be just another anodyne official report, what underlies it is likely to be hundreds of hours of drafting, soliciting data and comments from related offices, including the Research Office (with a department in charge of Hong Kong and Macau issues), comments from the vice president in charge of the #4 Division (it now appears to be Justice Tao Kaiyuan), President Zhou Qiang’s office, and the NPC Standing Committee itself. It is unclear whether the Ministry of Foreign Affairs and the Ministry of Comments also provided input. It incorporated the SPC’s response to a research report on foreign-related adjudication work prepared by the NPC Standing Committee’s Supervisory and Judicial Affairs Committee (mentioned in the previous blogpost).
3. Summary of the Report
The report highlights the SPC’s work in foreign-related cases in support of related policies. The structure of the report is the usual one for such reports–a long list of accomplishments, followed by a summary of outstanding challenges and suggestions to the NPC Standing Committee for future work. It reveals some previously unknown developments and clearly sets out the official conceptual structure underpinning the SPC’s foreign-related adjudication work and therefore China’s “foreign-related rule of law.” The report takes an inclusive view of accomplishments: judicial interpretations, policy documents, typical and guiding cases, as well as correctly deciding important cases. This blogpost decodes the details in the report, with brief comments and links to some of my earlier blogposts.
a. Selected Statistics
The report provides selected statistics. As I have said when I have spoken on the Belt & Road and the SPC, the number of foreign-related cases heard in the Chinese courts has increased substantially over the past ten years, but even now they constitute a tiny percentage of cases heard in the Chinese courts. The report reveals some of the challenges, as seen officially.
From 2013 to June 2022, Chinese courts heard a total of 384,000 foreign-related (including Hong Kong, Macau, and Taiwan-related) cases. These numbers are tiny compared to the large number of cases accepted by the Chinese courts annually. For example, in 2021, that number reached over 33 million cases. The number of first-instance foreign-related civil and commercial cases nationwide increased from 14,800 in 2013 to 27,300 in 2021. The SPC has not released more detailed statistics about the types of civil and commercial cases or foreign-related cases in other areas of law, such as criminal cases.
b. Protecting China’s National Security and Sovereignty
As is usual with SPC official reports and documents, matters relating to national security and sovereignty take a prominent place. The SPC reiterates that its foreign-related adjudication work serves the domestic and external greater situations. This section highlights two areas of service in protection of national security and sovereignty:
protecting China’s investments abroad. Cases so classified include infrastructure-related cases, trade cases, and shipping cases. The principal accomplishment is issuing a judicial interpretation on the hearing of independent letter of guarantee (demand guarantee) disputes and unifying the rules governing such disputes. These developments, which have come through several SPC cases (discussed here) and the end 2021 Conference Summary, have been flaggedonthisblog. A long-pending China International Commercial Court (CICC) case may provide additional guidance.
c. Creating a Legalized International Business Environment
This section is relatively long and highlights much of the SPC’s foreign-related adjudication work in the past 10 years. The focus is on international commercial dispute resolution rather than intellectual property disputes. i. Foreign investment: The courts have supported the revised Foreign Investment Law and Implementing Regulations with two interpretations (including one on the application of the Foreign Investment Law, mentioned here), as well as a policy of centralizing the hearing of such cases, seeking to ensure greater competency. ii. Pilot free trade zones and ports: The courts have supported these policies through several services and safeguards opinions (one general one, discussed in my book chapter, as well as ones on Lingang, Hainan, and new zones in Beijing). The SPC also issued related typical cases and encouraged local courts to establish additional measures to support national free trade zone policy. iii. The courts have supported national policies supporting a competitive market order, and to that end have issued regulations on bankruptcy, normative documents on improving the business environment (including services and safeguards opinions and a conference summary), and established financial courts (see Mark Jia’s related article). iv. Supported national policy concerning economic development and COVID-19 pandemic control (I have a related article that will be published in Italian). The SPC promulgated four guiding opinions (policy documents) on the trial of civil cases related to the Covid-19 pandemic, one of which focused on foreign-related commercial and maritime cases. This document was included in UNCITRAL’s CLOUT database.
v. Respecting international conventions and international practices (customs or usage, by which is meant trade/commercial practices or usages). As mentioned here, the SPC is drafting a judicial interpretation on the application of international conventions and treaties and international practices and has issued related typical cases. vi. Application of (foreign (non-mainland) governing law. Since 2013, the courts have applied foreign law in 542 cases. My draft article discusses related issues briefly. vii. Cross-border recognition and enforcement of judgments: Since 2013, the courts nationwide have considered 7,313 cases of applications for recognition and enforcement of civil and commercial judgments from foreign courts. My draft article discusses the evolution of this policy. The report mentions the enforcement of Chinese judgments abroad.
d. Serving national maritime policy
The report underlines that the SPC’s maritime adjudication work directly serves foreign trade shipping and marine development to maintain national [judicial] sovereignty and related national interests. The report mentions that the SPC issued judicial interpretations on maritime litigation jurisdiction, and issued judicial interpretations for hearing cases of compensation for damage to marine natural resources and ecological environment. The SPC and the Supreme People’s Procuratorate issued regulations on handling public interest litigation cases on marine natural resources and ecological environment, and released related typical cases. The report mentions China’s work on becoming an international maritime justice center (See my article in the Diplomat). Related accomplishments include the SPC expanding the network of maritime courts and their dispatched tribunals and the report highlights that more parties without a jurisdictional link with China have chosen the jurisdiction of the Chinese maritime courts (for a different view from the official one, see Professor Vivienne Bath’s research on parallel litigation involving the Chinese maritime courts).
e. Improving international commercial dispute resolution mechanisms to serve high-quality development of the BRI
According to the report, the SPC is implementing the deployment of the political leadership in this area. Those include:
the CICC and related developments, including: the CICC’s bilingual website, the CICC’s expert committee; two BRI Services and Safeguards Opinions, and typical BRI cases, as well as establishing local international commercial courts. (This blog has discussed these developments in some detail, with more contained in my draft article).
f. Establishing diversified dispute resolution of international commercial disputes
i. The SPC reports that it established a “one-stop” diversified international commercial dispute resolution mechanism, which integrates litigation, arbitration, and mediation. The report mentions the accomplishments of several local courts and the incorporation of arbitration and mediation institutions into the SPC’s (CICC’s (Chinese version)) one-stop platform. ii. Arbitration: The SPC issued judicial interpretations on judicial review of arbitration cases and enforcement of arbitral awards, and introduced a mechanism and reporting system for judicial review of arbitration cases; since 2013, Chinese courts have heard over 110,000 judicial review cases (presumably the vast majority domestic). iii. Mediation: The report describes local developments and accomplishments related to the mediation platform of the people’s courts (see the related white paper).
g. Serving national Hong Kong, Macao and Taiwan policy
On the details of SPC and Greater Bay Area policy, please see my earlier blogpost and presentation at a November, 2022 conference held at the Law Faculty of the University of Hong Kong.
This blogpost summarized earlier developments related to Taiwan. The SPC issued judicial interpretations on the recognition and enforcement of Taiwan civil judgments and arbitration awards. The SPC mentioned that the courts have supported national policy on integrating Hong Kong and Macao into Greater Bay Area policy by supporting [Ministry of Justice led policy] to permit lawyers from Hong Kong and Macao to practice in the Greater Bay Area (note, such lawyers must be Chinese citizens). The courts are also supporting the initiatives related to integrating Hong Kong, Macau, and Taiwan legal professionals (again, foreign professionals registered in these jurisdictions are not included).
f. Improving the quality and credibility of China’s foreign-related adjudication
i. Jurisdiction: the report mentions a notice on jurisdiction on foreign-related cases (flagged in this blogpost) and centralized jurisdiction. ii. Service of process: The SPC amended the judicial interpretation of the Civil Procedure Law to enable more flexible service of process abroad and established a platform with the Ministry of Justice (discussed in this blogpost) to enable more efficient handling of service of process requests from abroad. (There is no mention of greater flexibility in foreign service of process into mainland China.) iii. Determination of foreign law: the SPC established a unified platform for the determination of foreign law (accessible through the CICC website, see the links above), which links to SPC-authorized institutions providing such services. My draft article provides additional details.
iv. Improving cross-border litigation services. This integrates with the SPC’s smart courts policy. One of the major accomplishments mentioned in the SPC’s judicial interpretation on cross-border online litigation. iv. Training foreign-related adjudication talents (涉外审判人才. See my earlier blogpost.
g. Promoting the development of the domestic and foreign-related legal systems
Matters so classified include: vigorously supporting the development of foreign-related legislation (mentioned in this blogpost); application of foreign-related law; and undertaking related research. The foreign-related legislation that the report mentions (Civil Procedure Law and several maritime-related laws), is actually only one small part of what the SPC has done. The application of foreign-related legislation gives the SPC an opportunity to reiterate its accomplishments in issuing judicial interpretations; policy documents; conference summaries; and typical cases. The SPC also mentions its BRI research center and establishing research centers at 15 universities and research institutions.
h. International judicial exchanges to promote the establishment of a community with a shared future of mankind
The SPC includes in this category the following: judicial exchanges in the form of memoranda of understanding and large-scale conferences; international judicial assistance in both civil and criminal matters; participation in the formulation of international rules (negotiating international conventions and bilateral treaties, as mentioned here, as well as providing support to China’s initiatives in various matters, including railway bills of lading (see my student Zhang Huiyu’s article); and “telling China’s rule of law story well.” The latter category includes certain conferences and meetings with foreign judiciaries. I have either been a participant or an observer in some of those “telling China’s rule of law story well” events, such as the CICC international conferences and the 2019 third meeting of the UK-China Joint Judicial Expert Working Group on Commercial Dispute Resolution.
4. Challenges in foreign-related work
The report listed the following challenges: a. Limited ability of some courts to engage in foreign-related adjudication work, as evidenced by the lack of experience of some courts in foreign-related work. When I spoke at a Hong Kong International Arbitration Centre event in October, 2022, my co-panelist Arthur Dong illustrated that with his accounts of how several local courts handled applications for interim measures. b. Ongoing difficult issues: difficulties in service of process, extraterritorial investigation and evidence collection; determining foreign (non-mainland Chinese) law; shortening the trial period for hearing foreign-related cases (also note that at least one CICC case has been outstanding for over two years). c. The “one-stop” diversified international commercial dispute resolution mechanism needs improving and China needs to accelerate the drafting of a commercial mediation law. The need for a commercial mediation law has been discussed within central institutions since at least 2019 (as I have observed). So it seems that the SPC is in line with the view of the Ministry of Commerce that such a law is needed to promote more professional mediation. d. A significant shortage in the number of judicial personnel with foreign-related expertise (discussed here).
5. Future developments
The report emphasized adhering to the leadership of the Party to ensure foreign-related adjudication is politically correct and in line with the deployment of the political leadership. The practical measures (directed towards the NPC Standing Committee) included:
Accelerating the process of amending the foreign-related part of the Civil Procedure Law (this has been accomplished). Incorporating the amendment of the Special Maritime Procedure Law into the [NPC’s] legislative plan; amend the NPC Standing Committee decision establishing the maritime courts, to give maritime courts in coastal cities jurisdiction over certain criminal cases (an issue under discussion since at least 2014);
improving certain matters related to the CICC to resolve certain “bottleneck” issues (unspecified).
At an appropriate time, drafting a commercial mediation law to provide a sufficient legal basis for China’s competitive position in international commercial dispute resolution;
Delegating authority to Guangdong and other courts that hear a large number of cases involving Hong Kong and Macau cases to simplify civil litigation procedures, such as proof concerning the identity of the party and authorization of its representative. (These issues are linked to the fact that China has not yet signed the Hague “Apostille Convention” (see my earlier blogpost) and has not yet created an analogous procedure for Hong Kong and Macau);
Improving training of foreign-related legal personnel through implementing an exchange policy with international institutions. As I have observed, much of the discussion of training foreign-related legal personnel has involved training in China, with minimal foreign involvement.
Concluding comment
As this report has illustrated, the SPC (and the court system) are taking an active part in the evolving project of creating a foreign-related legal system that better reflects both the demands of the political leadership and the practical needs of the users of the Chinese legal system. It should be clear from this analysis that China’s foreign-related rule of law is a work in progress involving a multitude of issues, and that the SPC has a multifaceted and crucial role in its creation.
By Susan Finder, drawing on research by Sun Dongyu (Christopher)
In October 2022, Supreme People’s Court (SPC) President Zhou Qiang delivered a report to the National People’s Congress (NPC) Standing Committee on foreign-related adjudication work since the 18th Party Congress (党的十八大以来人民法院涉外审判工作情况) (Foreign-Related Adjudication Work Report). Under NPC legislation, this type of report is classified as a specialized report (专项报告). In the New Era, the SPC delivers such reports to the NPC Standing Committee annually. Han Xiaowu, the deputy head of the Supervisory and Judicial Affairs Committee of the NPC, in an article reviewing the supervisory powers of the NPC Standing Committee, described listening to and reviewing specialized reports as a significant means by which the NPC Standing Committee exercises its supervision authority over other institutions. The SPC has published a collection of these reports issued since the 18th Party Congress, pictured above.
This blogpost provides a dive into the law and practice of these specialized reports, focusing on reports prepared by the SPC. A subsequent post will focus on the content of the Foreign-Related Adjudication Work Report.
Specialized Reports & the Relationship between the NPC and SPC
Most people with basic knowledge about the operation of the Chinese legal system know that the SPC president delivers a report to the NPC annually, every spring. Less known is that the SPC president also gives specialized reports to the NPC Standing Committee, under the Law on Oversight by Standing Committees of People’s Congresses at Various Levels (People’s Congresses Oversight Law). According to the NPC Observer, that law is scheduled to be updated. The details of NPC Standing Committee supervision of the SPC through specialized reports provide one discrete example of how Party leadership of legal institutions is implemented in practice and the interrelationship among state legal institutions.
The People’s Congresses Oversight Law authorizes the NPC Standing Committee to supervise the SPC, Supreme People’s Procuratorate (SPP), and the government in several ways, one of which is requiring these institutions to provide specialized reports, as set out in the NPC Standing Committee’s annual plan. Han Xiaowu described them as drawn up according to the work deployment of the Party Center ( 中央的工作部署). Articles 8 and 9 of the People’s Congresses’ Oversight Law provide some basic principles concerning the topics of those specialized reports. It is understood that early in the year, the NPC’s Supervisory and Judicial Affairs Committee communicates with the SPC (and analogously with the other institutions that the NPC Standing Committee supervises), to set the topic and timing of the specialized report. It is likely that the SPC’s General Office, which is responsible for inter-institutional liaison, is the entity within the SPC that works out the details with the NPC Standing Committee.
A quick search on Wechat reveals that foreign-related adjudication work was part of the overall supervision plan of the NPC Standing Committee in 2022. It meant that the NPC Standing Committee allocated significant time to investigating how Chinese courts hear foreign-related cases. Official reports on Wechat flag that senior NPC Standing leaders went to certain provinces to investigate how local courts heard foreign-related cases as well as understand local developments relating to juvenile procuratorial work. In the summer of 2022. Cao Jianming, vice chair of the NPC Standing Committee (and former senior SPC leader and procurator-general) visited Jiangsu and Guangdong in the summer of 2022, while Hao Mingjin visited Fujian. In each case, according to bureaucratic protocol, senior leaders of the SPC and SPP accompanied the NPC Standing Committee leaders, who in turn had senior NPC Standing Committee staff in attendance.
These visits (described as research/调研) were consolidated into a report provided to the SPC (non-public), as revealed by the Foreign-Related Adjudication Work Report. It also enabled the NPC Standing Committee leaders to monitor how well the SPC and SPP respectively supervise and guide the lower courts and procuratorates in their work, politically and substantively, monitor local developments and the interaction among local institutions. Cao Jianming told senior leaders in Jiangsu that they must adhere to the guidance of Xi Jinping Thought on Socialism with Chinese Characteristics for a New Era, resolutely implement the decision-making and deployment of the Party Central Committee, the work deployment of the SPC and the requirements of the provincial party committee. Cao reiterated principles for which local court leaders need no reminders–that they must thoroughly study and implement Xi Jinping’s thoughts on the rule of law, deeply understand the significance of foreign-related rule of law work, focus on researching new situations and new problems, improve systems and mechanisms, and continuously improve the level of foreign-related adjudication work.
The People’s Congresses Oversight Law provides further details concerning specialized reports. It requires the NPC Standing Committee to gather some questions to send to the SPC (or other institution providing a report), presumably intended to highlight issues that the NPC Standing Committee requires to be incorporated in the report. The procedure requires the SPC to send its draft report to the relevant specialized NPC committee 20 days before the formal report is delivered. Presumably, Han Xiaowu was involved in the review of the Foreign-Related Adjudication Work Report. If the SPC amends the draft report, it must be submitted to the NPC Standing Committee at least 10 days before that date, so the revised report can be distributed to the members. The head of the institution must deliver the report, which is discussed by members. The results of the discussions of the reports are forwarded to the SPC (or other reporting institutions), which must respond to them. The issues that the NPC Standing Committee raises with the institution providing the specialized report are made public in summary form. What is occasionally made public is the SPC (or other institution’s) response to the comments of NPC Standing Committee members. As I have not seen the SPC’s response to comments on last October’s report, I presume that the SPC has not yet finalized a response to the comments. Presumably, the #4 Civil Division would take the lead in drafting the response, which would be reviewed by the vice president in charge of that division, and likely by the SPC president. The NPC Observer discusses responses to reports in this blogpost.
Those who have been involved with the specialized report process explain that both institutions see benefits in the NPC Standing Committee requiring specialized reports of the SPC. The NPC Standing Committee sees it as an effective way of exercising its supervision (oversight) authority over the SPC, while the SPC sees it as an effective way to display its competence while providing a forum to raise issues that require the involvement of the NPC Standing Committee. It can also be said to be another way in which Party leadership of the courts (and other institutions) is indirectly implemented.
The specialized report procedure is a less understood way in which the NPC and its Standing Committee supervise (监督 oversees) the SPC and implement Party leadership, and provides an example of how the SPC is institutionally both more and less powerful than other apex courts.
Supreme People's Court Monitor 
You must be logged in to post a comment.