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arbitration

Remarks on the Amended Arbitration Law at the Hong Kong International Arbitration Centre

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At a 25 March 2026 Hong Kong International Arbitration Centre (HKIAC) event on the amended Arbitration Law, featuring a keynote speech by Director Shi Hong (石宏)， Director of the Civil Law Department of the Legislative Affairs Commission, Standing Committee of the National People’s Congress (not pictured). My fellow panelists were: Zhang Xi (章曦) , head of the HKIAC Beijing representative office, Mr. Liu Shihu (刘世虎), of the Ministry of Justice, Joanne Lau, Secretary-General, HKIAC, Arthur Dong （董箫), partner with Jun He Law Offices, and Secretary General Jiang Lili (姜丽丽) ， Beijing Arbitration Commission. I gave an abbreviated version of the Chinese speech below, which I originally drafted in English.

Many thanks for the kind invitation to make some remarks about the amended Arbitration Law. Because the Supreme People’s Court did not send an official representative to speak, I will focus my comments on what the amended Arbitration Law means for the work of the Supreme People’s Court and lower courts.

Why am I talking about this? For those who do not know me, I have been a member of the Supreme People’s Court’s China International Commercial Court’s International Commercial Expert Committee since 2018 and a long-term observer of the work of the Supreme People’s Court. So how I discuss this will be different from an official spokesperson, but based on their official statements and my own work.
The focus of my presentation will be on the implications of the amended Arbitration Law for the Supreme People’s Court and lower courts. I’ll use a minute or two to give a bit of background.


On the drafting of the Arbitration Law, as was stated in a recent press report, “The Supreme People’s Court has been deeply involved in the legislation and amendment work of major foreign-related laws such as the Foreign Relations Law, the Anti-Foreign Sanctions Law, the Foreign State Immunities Law, the Civil Procedure Law, the Arbitration Law, and the Maritime Law.” Additionally, the Supreme People’s Court issues judicial interpretations and guidance in other forms for the lower courts, to enable them to apply the law more consistently. Judicial interpretations, as I previously wrote, are not linked with a specific case but draw on many previous cases. They are a critically important way that the SPC unifies the application of law by the courts, although the extent to which they are binding outside the court system is unclear. The Legislative Affairs Commission of the National People’s Congress Standing Committee reviews them and may require amendments.

At a joint press conference with the Legislative Affairs Commission, hosted by the Ministry of Justice, the Chief Judge of the Supreme People’s Court #4 Civil Division said that the “Supreme People’s Court will conduct thorough research, widely solicit opinions from all sectors, and, with the strong support of the Legislative Affairs Commission of the National People’s Congress and the Ministry of Justice, comprehensively review existing judicial interpretations and normative documents related to the Arbitration Law to ensure the drafting and formulation of supporting judicial interpretations for the newly revised Arbitration Law, guaranteeing that the revised content of the Arbitration Law is effectively implemented in judicial practice.” So the future judicial interpretation will reflect the views of multiple institutions.

The “thorough research” (认真调研) will involve combing through hundreds of pages of judicial interpretations and other judicial documents linked to the Arbitration Law, the Foreign-Related Part of the Civil Procedure Law, plus the current draft interpretation of the foreign-related part of the Civil Procedure Law. The work involved, which will be invisible to those of us outside the Supreme People’s Court, will be to determine which interpretations or documents remain valid in whole or part, and what amendments are necessary. It was reported that the Supreme People’s Court as a next step, would conduct research on the Arbitration Law and other legislation (下一步开展仲裁法、外国国家豁免法司法解释调研工作). The Legislative Affairs Commission of the Standing Committee of the National People’s Congress and the Ministry of Justice will review that comprehensive draft carefully and give detailed comments for the Supreme People’s Court to consider.

So, my understanding is that the judicial interpretation will be issued sometime in 2027. That is normal timing. The judicial interpretation drafting process is lengthy. The Supreme People’s Court needs time to review the old interpretations , and intends the interpretation to address issues that are unclear in practice and be effective for a considerable period.
In the meantime, the Supreme People’s Court is/will be monitoring issues that confuse the lower courts. Those lower courts are more knowledgeable than they were ten years ago. That is linked to measures that the Supreme People’s Court has taken in recent years to encourage local courts to establish international commercial tribunals 国际商事法庭, to handle foreign-related matters, including judicial review of arbitration more competently.

How does the Supreme People’s Court monitor what issues confuse the lower courts? It has several ways to do that. One way is to convene a judicial review of arbitration internal conference (会商会), as was done last year for maritime matters. Second, questions that confuse lower courts will also come through the 法答网 system to the Supreme People’s Court’s #4 Civil Division, or possibly through a request for instructions (请示).
How might the Supreme People’s Court provide guidance, pending the issuance of the judicial interpretation, and how could you follow it? Those guidance methods mirror the ways that it monitors the lower courts. One would be for the Supreme People’s Court to issue meeting minutes (会议纪要), as it has done after other internal conferences 会商会. These cannot be cited as the basis for a judgment, but lower court judges generally follow its provisions, as it expresses the position of the Supreme People’s Court. I am not sure whether those meeting minutes will be made public, as it does not always do so, but I expect a related press report. Because the current judicial reform plan outline(六五纲要 ) provides that the People’s Court Database (人民法院案例库) and the Court Answers Platform (法答网) will create an integrated guidance product, I recommend monitoring whether amended Arbitration Law-related questions will be answered through the 法答网 system. Recently, the Supreme People’s Court published two sets of questions and answers on judicial review of arbitration raised on the Answers Platform (法答网 ) in People’s Court Daily (人民法院报). The People’s Court Case Database (人民法院案例库) contains reference cases related to arbitration, including judicial review of arbitration. That database should be monitored too, as well as typical cases issued by the Supreme People’s Court or lower courts. I note that recently, the Xinjiang Higher People’s Court issued typical arbitration cases.
As to the reaction of the lower courts to the amended law, my understanding is that the most knowledgeable and experienced judges are not fazed by the amendments to the Arbitration Law, because the amendments do not change the standard of judicial review. As to what I expect could be some of those hot issues,–the first one to mention is the new provision permitting preservative measures for assets or evidence in an emergency situation before an arbitration case is filed, as was mentioned in a recent article in People’s Court Daily (人民法院报). However, in 2024, the Supreme People’s Court issued detailed guidance on pre-litigation preservative measures, entitled Opinions on Standardizing and Strengthening the Handling of Pre-litigation Preservation Cases (关于规范和加强办理诉前保全案件工作的意见), which mentions arbitration, so I surmise local courts will apply the provisions in this document pending specific guidance. Will the adoption of the concept of “seat” create major issues? I believe not, as it will not make a difference for the vast majority of cases.
Although the People’s Court Daily article mentioned some uncertainties connected with ad hoc arbitration , I believe, as a practical matter it will not be a major issue.
I hope my remarks are helpful. I look forward to your comments.

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Chinese version

鉴于最高人民法院未安排代表出席本次研讨会，我想从法院的视角，重点剖析新《仲裁法》对最高人民法院及全国各级地方法院工作的意义，这也是我今天发言的核心。
有人可能会感到好奇：我为什么选择谈这个问题？事实上，从2018年起，我和在座的几位同仁一样担任最高人民法院国际商事法庭专家委员会委员。我长期研究最高人民法院的司法实践与涉外司法工作，对最高人民法院有所了解。需要说明的是，我今天并不是替官方发声。我只是基于最高人民法院已公开的权威信息并结合我自己的研究谈几点个人看法。我引用的材料与最高人民法院正式公开的官方信息保持一致。
我的发言围绕新《仲裁法》对最高人民法院及下级法院的影响展开。在进入核心议题前，我先简单谈一下相关背景。
关于《仲裁法》修订，最近有一家媒体报道称：“最高人民法院深度参与《对外关系法》《反外国制裁法》《外国国家豁免法》《民事诉讼法》《仲裁法》《海商法》等重大涉外法律的立法修法工作。”此外，最高人民法院还通过制定司法解释、发布规范性文件等多种形式为下级法院提供指导，确保法律适用的统一。正如我此前在相关研究中提到的，最高人民法院制定的司法解释并非依托单一个案，而是基于对大量司法案例的研究与总结，是最高人民法院统一法律适用的关键途径。不过，对于司法解释在法院系统之外有多大约束力，仍没有定论。全国人大常委会法工委依法审查最高人民法院的司法解释，并有权依法提出修改意见。
此前在司法部主办、全国人大常委会法工委共同参与的新闻发布会上，最高人民法院民四庭庭长表示：“最高人民法院将认真调研、广泛听取各界意见，在全面梳理既有仲裁法相关司法解释和规范性文件的基础上，在全国人大法工委、司法部的大力支持下，做好新修订仲裁法配套司法解释的起草制定工作，确保《仲裁法》修订内容在司法实践中落地落细。”“最高人民法院将进一步完善仲裁司法审查机制，尤其是细化司法审查的规范和工作流程，优化仲裁保全机制，以及审执衔接机制，也就是撤裁的审查机制和裁决执行机制相衔接，加大仲裁法培训力度，确保法律适用统一，不断提升仲裁司法审查工作质效和专业化水平。”可以预见，后续出台的仲裁法司法解释，将反映多家机构的意见。
这里提到的“认真调研”涉及对现行与仲裁法相关的大量司法解释、司法规范性文件、和民事诉讼法涉外编及其在起草当中的司法解释的梳理。最高人民法院系统外的人不清楚这项工作。这项工作的目的在于，辨别现行司法解释或规范性文件中的哪些是有效的，是全部有效，还是部分有效，哪些地方需要修订。据公开报道，最高人民法院下一步将推进《仲裁法》司法解释调研工作，全国人大常委会法工委和司法部也将细致审查《仲裁法》司法解释草案，并提出详细修改意见供最高人民法院参考。我预计，相关配套司法解释将2027年某个时间点出台。这很正常，因为司法解释起草工作非常耗时。第一，最高人民法院需要时间来审查旧的司法解释，第二，想法是司法解释比较稳定，在较长时期内持续有效，又能够应对司法实践中的疑难复杂问题。
与此同时，最高人民法院正在或未来将持续关注困扰下级法院的法律适用难题。相较于十年前，现在全国各地方法院涉外业务水平总体上提高了。这与最高人民法院近年来大力推动地方法院设立国际商事法庭、高标准办理仲裁司法审查等各类涉外案件密不可分（我曾就此写过一篇短文）。最高人民法院是如何掌握下级法院的实务困惑的呢？
这里有几种方法，我建议对此感兴趣的人关注一下：一是召开全国仲裁司法审查会商会，去年海事审判领域曾运用这一机制；二是下级法院面临的疑难问题可以通过“法答网”反映给最高人民法院民四庭，或者在某些情况下也可以按程序请示最高人民法院。
在配套司法解释正式出台前，最高人民法院如何为下级法院提供实务指引？我们又如何对其进行跟踪？相关路径与最高人民法院掌握下级法院实务困惑的渠道基本对应。
一是会议纪要。比如，最高人民法院在会商会结束后会发布会议纪要。此类会议纪要虽不能直接作为裁判依据，但下级法院的法官通常会参照适用，因为它表达了最高人民法院的立场。我不确定这些会议纪要是否会公开，因为这不是最高人民法院的一贯做法，但我预计相关媒体会报道。
二是法答网上面与仲裁相关的问答。现行的《人民法院第六个五年改革纲要》（六五纲要）明确提出，要“加强“库网”融合发展。“。我建议各位关注法答网上面有关仲裁疑难问题的答复。最近，最高人民法院在《人民法院报》上刊登了两批涉及仲裁司法审查的法答网问答。
三是人民法院案例库。人民法院案例库收录了涉及仲裁的参考案例，包括仲裁司法审查案例，也值得关注。
四是典型案例。 最高人民法院和地方法院会出典型案例。最近， 新疆高院发了仲裁典型案例。
至于地方法院对修订《仲裁法》的反应，根据我了解到的情况，见识最广、资历最深的那些法官并不为本次《仲裁法》修订感到忧虑，因为新《仲裁法》并未改变中国仲裁司法审查标准。
至于新《仲裁法》可能带来的热点，我认为，首先是新增的仲裁前保全制度，其明确当事人在紧急情况下，可在申请仲裁前依法向人民法院申请财产保全或证据保全。《人民法院报》刊登的一篇文章提到了这点。不过，最高人民法院在2024年发布的《关于规范和加强办理诉前保全案件工作的意见》已经提到仲裁，因此，我推测，在详细配套指引出台前，地方法院将参照该文件处理仲裁前保全申请。至于“仲裁地”概念引入新《新仲裁法》是否会引发重大问题？我认为不会，因为这对绝大多数案件不会产生实质影响。至于临时仲裁，尽管《人民法院报》相关文章提到了一些有待厘清的问题，包括临时仲裁的性质、程序管理（送达、仲裁记录、费用支付等）等人民法院仍需谨慎处理的实践难题，但我相信，这在实践中并不是什么大问题。
最后，希望我的发言没浪费大家的时间，也期待听到大家的评论。

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Many thanks to Peking University School of Transnational Law 2L student Duan Kun ( 段昆, Daniel) and China Academy of Social Sciences Assistant Researcher Fu Panfeng (傅攀峰) for their work in translating and transposing the spirit of the English version of this presentation into Chinese under time pressure. Without their work, the presentation would not have been possible. A special thanks to Duan Kun for traveling from Shenzhen to Hong Kong to attend the HKIAC event.

criminal law

Practitioners’ Guide to China’s Criminal Law

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Criminal Law Treatise

This newly published volume 刑法注释书（Criminal Law Treatise), the first volume in a series of treatises for practitioners, is critical for understanding how Chinese judges and other practitioners approach China’s Criminal Law.  This reference work was edited by He Fan, head of the planning section of the Supreme People’s Court Judicial Reform Office.  He has a PhD in criminal law.  Earlier in his career was a policeman and a criminal court judge, so he has insights from the world of practice about what judges and others who need to understand the law on a particular crime correctly (正确). The idea from the volume arose from a project that he did with the Shanghai Higher People’s Court. And He Fan notes in his article introducing the book that the organizing principle for this book is influenced by a volume on Criminal Law edited by Hsu Yu-hsiu, former grand justice on Taiwan’s Constitutional Court and a handbook on search and seizure by Taiwan National University Professor Lin Yu-Hsiung. Both books draw on the approach of traditional Chinese criminal law books of setting out the statute provisions with annotations (注释).

The book assembles in a single deceptively small volume the principal sources of law and guidance that those involved in the criminal justice system in China need to access.

The organizing principle for the book is as follows:

  1. legislation–article of the law and any prior versions of the article, with any explanation (说明), including explanations of the amendment (立法-要点注释);
  2. Related legislation (相关立法);
  3. legislative interpretations (立法解释); (these are binding and have a higher status than judicial interpretations);
  4. Legislative opinions of an interpretive nature (立法解释性意见)–responses by the Legislative Affairs Commission (and its Criminal Law Office) on issues of criminal law.  These do not have a formal status under Chinese law, but are authoritative guidance. (Thank you to Changhao Wei, NPC Observer, for this comments on this) ;
  5. judicial interpretations (司法解释) (these can be by the SPC, the Supreme People’s Procuratorate (SPP), or the two together. These have a formal legal status under Chinese law and the SPC and SPP have declared that they have the status of law;
  6. judicial guiding documents (司法指导文件)–these are documents providing guidance on criminal law issues from the Central Political-Legal Commission, the SPC and its Research Office, various criminal divisions, SPP and its Policy and Research Office, and other related documents (as mentioned in the previous blogpost, these types of documents lack a formal status, but are highly authoritative);
  7. judicial interpretations–annotations司法解释-注释 and judicial guiding documents–annotations 司法指导性文件-注释–these are related “understanding and application” documents (相关文件理解与适用) authoritative explanations by the drafters of judicial interpretations and judicial guiding documents (previous blogposts have drawn on these “understanding and application documents”);
  8. If multiple judicial interpretations have been issued on an issue, annotations to each;
  9. Guiding cases–courts 指导性案例-法院 (translations available at the China Guiding Cases Project);
  10. Guiding cases–procuratorate指导性案例-检察 (translations of many available at Chinalawtranslate.com);
  11. SPC bulletin cases 法院公报案例 (I have written about the hierarchy various types of SPC approved cases in my Tsinghua China Law Review article);
  12. Court reference cases 法院参考案例 (these refer to the cases in Reference to Criminal Trial, the publication of the five criminal divisions of the SPC), also mentioned in my article and a January, 2018 blogpost;
  13. public security documents ( 公安文件)–documents of the Ministry of Public Security (MPS), the MPS legal affairs bureau, the economic crime investigation bureau and other related guidance documents).
“See inside this book”

 

women, Women in the judiciary

Pushing women’s issues at the Supreme People’s Court

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Outside observers reading Chinese official media, including reports on the Supreme People’s Court’s website, need special skills to identify significant developments.   One of those small but significant developments is found in a 23 December 2018 report on the visit of Shen Yueyue, the head of the All-China Women’s Federation (Women’s Federation) to the Supreme People’s Court, pictured above. The women’s rights and interests department of the Women’s Federation must have prepared the list of issues that she raised.  The crucial paragraph reported:

…the Women’s Federation hopes to further strengthen exchanges and cooperation with the Supreme People’s Court. The first is to strengthen protection from the source [deal with the source of the problem], fully consider the special interests and potential impacts on women in the process of judicial interpretation, and jointly promote the establishment of a gender equality assessment mechanism. The second is to follow the legislative process, strengthen cooperation in the preparation of the Civil Code, and jointly propose legislative proposals to protect rural women’s land rights, prevent and stop gender discrimination in employment, and promote the improvement of the legal system for women’s rights and interests. The third is to focus on key areas, strengthen cooperation in the reform of the family trial system, improve the diversified solution mechanism of contradictions and disputes, and play the role of the people’s mediation committee, and promote the prevention and resolution of marriage and family disputes. Fourth,  jointly promote the resolution of prominent problems in judicial protection of women’s rights and interests, and effectively resolve prominent problems which women are concerned. [沈跃跃表示，全国妇联希望与最高人民法院进一步加强交流合作。一是加强源头保障，在司法解释制定过程中充分考虑女性的特殊利益和潜在影响，共同推动建立性别平等评估机制。二是紧跟立法进程，加强在民法典分编制定中的合作，共同向立法机关提出保障农村妇女土地权益、预防和制止就业性别歧视等立法建议，推动完善妇女权益保障法律体系。三是关注重点领域，在推进家事审判制度改革、完善矛盾纠纷多元化解机制、发挥人民调解委员会作用等方面加强合作，推动婚姻家庭矛盾的预防和化解。四是坚持问题导向，共同促进妇女权益司法保护突出问题和妇女关心关切现实问题的有效解决.]

Some brief comments below on some of the many issues:

  1.  Special interests of women in drafting judicial interpretations

This may be linked to the five-year plan to implement socialist core values into judicial interpretations discussed in this earlier blogpost. The report did not mention the official reaction to having a gender equality assessment mechanism incorporated into the SPC’s judicial interpretation drafting process or other improving the consideration of women’s interests.

As mentioned in the blogpost, the plan includes amending and improving judicial interpretations related to the Marriage Law and family law, etc.  As Professor Yang Lixin of Renmin University (formerly an SPC judge) assesses the state of the law and related issues in this forthright analysis.  He comments on  the state of Chinese family law: …”the legal concepts of the Marriage Law and the Inheritance Law are relatively backward, which is the main problem of current family law.” Professor Yang goes on to discuss a number of family law issues that Chinese law fails to deal with, but affect Chinese women (and other women living in China).

Professor Yang had this to say about de facto marriage (what we Americans sometimes call “common law” marriage) (or what my (late) father called “living in sin.”)  “The concept of de facto marriage is completely abolished in the field of civil law. However, it is particularly contradictory that in criminal law, it is recognized that defacto marriage is a marriage relationship…When sanctions are imposed on the parties, the factual marriage relationship is recognized. When the rights are recognized, the de facto marriage relationship is not recognized. This is a completely contradictory application of law.

He had this to say about another issue for many Chinese women–children born out of wedlock (The Economist, among other major media, have written on this):

China’s current Marriage Law does not provide for claims by children born out of wedlock and does not stipulate that children born within a marriage can be denied status as children of the marriage.  Children born out of wedlock are born from extramarital sex, that is, children are born out of wedlock, and the child or the mother must have the father to claim the child as a child…For example, a child born out of wedlock needs to be raised, and the mother is unable fully to support the child. She has reason to seek to confirm that the father of the child is the father, and then ask him to support the child. This kind of thing does occur, but our marriage and family law has not had such a rule until now. It is because we have socialist marriage values, we can’t engage in extramarital affairs, we can’t have children born out of wedlock, and the establishment of such a system is tantamount to acknowledging the legitimacy of such behavior.

Among the many concerns is that forthcoming judicial interpretations of the Marriage Law, designed to incorporate socialist core values to protect the stability of the family unit in Chinese society, could disadvantage women.

2.  Strengthen cooperation in the preparation of the Civil Code and promote the legalization of women’s rights protection

As fellow blogger Mark Cohen and I have reported earlier,  the SPC set up a civil law codification team, with Justice Du Wanhua taking the lead.  It appears that Professors Xia Yinlan of the China University of Political Science and Law and Li Mingshun of China Women’s University (among others) are working with the Women’s Federation and other scholars to seek to ensure that women’s rights are protected, as socialist ore values will also be integrated into the drafting of the Civil Code.

3. Legislative proposals to protect rural women’s land rights;

How to ensure that the rights of rural women to land are protected is a major problem, particularly now that the Chinese government is focusing on policies that marketize rural land interests.  Professor Li Huiying of the Communist Party’s Central Party School has been a major force in pushing national attention to this issue.  She wrote:

some people are farmers, but have no rights to get the contracted lands due to their “gender” or the identity “additional population”….

Firstly, 18 percent of married rural women do not have their names mentioned on either their parent’s families or their husband’s families land contracts.

Nearly 53 percent of married rural women’s land contracts were canceled by their home villages, according to an investigation among 1,126 such women in 21 provinces and municipalities nationwide, as conducted by the Center for Women’s Studies at Party School of the Central Committee of the CPC in 2014.

The National People’s Congress Standing Committee adopted an amendment to the Rural Land Contracting Law last December, mandating that rural women’s names be included in their families’ certificates of land contracting and management rights, so it is likely that Ms. Shen had other legislation and enforcement of this newly amended provision in mind.

4. Prevent and stop gender discrimination in employment

This is a long-term problem, reported not only the media, academia, but also by the business community.  The SPC  recently amended the civil causes of action to enable discrimination claims, but the substantive standards for discrimination are still lacking. It seems likely that multi-year discussions with the SPC headed by Ms. Gao Shawei, head of the Women’s Rights and Interests Department of the Women’s Federation were behind the inclusion of discrimination claims in the list of civil causes of action. She was quoted in this 2016 article in People’s Court Daily making that suggestion.  As mentioned in an earlier blogpost, the SPC is drafting a judicial interpretation of the Labor Contract Law, and it is conceivable that standards would be incorporated into that draft.

5. strengthen cooperation in the reform of the family court system; improving the systems for trying family-related cases and mediation

The SPC has been working on reforms to the family court system for some time, as previously reported and improving the use of mediation, but the obstacles are immense, as this interview with a local family court judge describes.  The court where she works is actually among the courts piloting family court reforms, as further described by the head of her court.  He provides a chart with statistics, not labeled as being from his court, but clearly from there (the blue column is the number of family disputes; the red, the number of divorce cases; the green, the number of divorce cases settled by mediation; and the purple column the number of cases in which the couple dropped their suit after a mediated settlement):Screenshot 2019-01-23 at 12.27.08 PM

 

 

 

Court Operations

The Supreme People’s Court and interpreting the law, revisited

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Marriage law judicial opinion
Marriage law judicial opinion

The topic of the Supreme People’s Court and the interpretation of law is one that vexes many, legal practitioners and academics alike.  Although the Chinese constitution vests the power to interpret law with the Standing Committee of the National People’s Congress (NPC SC), the Supreme People’s Court (the Court) and the Supreme People’s Procuratorate (SPP) actively issue interpretations of law. The Court more so than the SPP, because it deals with a broader range of legal issues.  These interpretations of law are critical to the operation of the Chinese legal system because national law tends to set out broad principles that require additional legal infrastructure to be workable and the courts, in particular, need that legal infrastructure to decide cases.

A 1981 decision by the NPC SC delegated to the Court the authority to interpret law relating to questions involving the specific application of laws and decrees in court trials, while the Supreme People’s Procuratorate (SPP) was delegated authority to interpret law relating to questions involving the specific application of laws and decrees in procuratorial work.  The Organic Law of the People’s Courts re-iterates the delegation of authority to interpret law to the Court. Oddly enough, the principle is not in the Organic Law of the People’s Procuratorates. Interpretations by both the SPP and the Court are known as “judicial interpretations.”

In 2015, the Legislation Law, which had previously not addressed interpretation of law by the Court and the SPP, addressed the issue in Article 104.  This article is taken as intended to codify existing practice, because the explanation of the law recognizes the practical necessity of judicial interpretations:

  • “Interpretations on the specific application of law in adjudication or procuratorate work issued by the Supreme People’s Court or Supreme People’s Procuratorate shall primarily target specific articles of laws, and be consistent with the goals, principles and significance of legislation.”
  • It requires the Court (or SPP) in the situation described in the second paragraph of Article 45 of the Legislation Law (where the NPC SC  gives interpretations of national law), to submit a request for a legal interpretation, or a proposal to draft or amend relevant law, to the NPC SC.
  • As 2007 regulations of the Court on judicial interpretations had required, interpretations of law are required to be reported to the NPC SC within 30 days of issuance.
  • Courts and procuratorates other than the Court and the SPP must not make specific interpretations of law. (This sets out in national law what had previously been contained in Court (and SPP regulations.)  The lower courts continue to issue guidelines applicable within their jurisdiction, as discussed  here.

(The explanation of the law  (legislative history) provides further background).

The process for drafting Court interpretations described in the 2007 regulations requires that the views of the relevant special committee or department of the NPC SC be solicited during the drafting process, and there would be pushback from the NPC SC if it was considered that the judicial interpretation had gone ‘too far.’

What types of judicial interpretations are there?

The 2007 Court regulations on judicial interpretations (linked here)  limit judicial interpretations to the following four types:

Those 2007  regulations set out various procedures for drafting and promulgating judicial interpretations, including a requirement that they be approved by the Court’s judicial committee and be made public.  As discussed in earlier blogposts, broad public consultation may be done if it affects the “vital interests of the people or major and difficult issues. These regulations also provide that judges may cite judicial interpretations as the basis for a court decision or ruling. Article 23 of the 4th Five Year Court Reform Plan mentions reform of judicial interpretations:

Improve the Supreme People’s Court’s methods of trial guidance, increase the standardization, timeliness, focus and efficacy of judicial interpretations and other measures of trial guidance. Reform and improve mechanisms for the selection, appraisal and release of guiding cases. Complete and improve working mechanisms for the uniform application of law.

As discussed in earlier blogposts, the Court also issues other documents with normative provisions that do not fit the above definition.  Those will be discussed separately.

Commercial law

Supreme People’s Court “soft consults” on company law

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L0U[3WLR5~U}00CSV6VUSZLThe Supreme People’s Court often organizes experts meetings (论证会) when drafting judicial interpretations, which are analogous to what in Hong Kong is called “soft consultations” (closed door consultation with market participants).

In late March, the Shenzhen Court of International Arbitration (SCIA)  and the #2 civil division of the Supreme People’s Court held a experts meeting in Shenzhen to obtain comments from the market on a draft of the #4 interpretation on company law. It was attended by a packed roomful of SCIA arbitrators (as attested by these photos from the report on the SCIA website). Participants included lawyers from the Shenzhen Stock Exchange (SSE), chief counsel for listed companies (primarily on the SSE), law firm partners with a broad range of clients, and the author of this blog.

Judge Wang Dongmin of the #2 Civil Division chaired the half-day proceedings. Vice President of the #2 Civil Division, Yang Yongqing, and Judge Liu Min of the #1 Circuit Court [Tribunal] based in Shenzhen, and other Supreme People’s Court judges also attended.

The review of the draft proceeded in five sections, mirroring the sections of the draft:

  • when can a court declare invalid or cancel a decision of a board of directors/shareholders meeting;
  • procedures by which a shareholder’s right to know can be enforced;
  • how can a shareholder enforce his right to have profits distributed;
  • issues related to the transfer of shareholding;
  • issues related to derivative litigation.

The commentators raised some issues not previously raised in previous experts meetings, as well as a broad variety of drafting comments, and practical issues, including many relating to cross-border issues.

The judicial interpretation is being drafted to provide guidance to the lower courts (and the market) in hearing cases concerning these basic company law issues that the Company Law itself does not yet address in sufficient detail.  We look forward to a revised draft being issued for public comment, so that the drafting team can receive an even broader range of comments.

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Court Operations

Supreme People’s Court interprets the Civil Procedure Law

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2On 4 February the Supreme People’s Court (Court) issued a comprehensive interpretation of the 2012 Civil Procedure Law, with 552 articles, longer than the 294 articles in the law itself.  It creates a much more sophisticated body of civil procedure law.  The Court has been working on this interpretation for over two years. As is usual, the Court held a press conference to explain its significance. The text of the press conference, in which the Court spokesman and Judges Du  Wanhua and Sun Youhai spoke, is also available on the Court’s website. A few of the highlights of the interpretation:

  • More detailed section on evidence, including recordings, reflecting the longer term work underway to draft an evidence code.
  • A new section on public interest litigation, in relation to environmental, consumer cases and other such cases.  The organization must show prima facie evidence of harm to the public interest. Other organizations and administrative agencies can apply to be joint plaintiffs.
  • Much longer section on foreign related issues, including provisions concerning foreign language evidence (translations should be provided), and if the parties disagree on the translation, they should agree on a third party translation agency.
  • Permission of the court is required to tape, video, or provide live posting on social media.
  • Many provisions relating to divorce of [former] Chinese citizens who have settled outside of China.
  • Section on small claims procedure.

More analysis to follow.

Domestic violence

The Supreme People’s Court on domestic violence legislation

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copyright Shenzhen
(originally published here)

In its 29 August Wechat feed (which reproduced an article  published in the People’s Court Newspaper), the Court issued an update on domestic violence legislation, focusing on Shenzhen’s draft Anti-Domestic Violence Regulations (Domestic Violence Regulations).  The Domestic Violence Regulations have been incorporated into Shenzhen’s legislation plan and is intended to be adopted by year’s end.

The update highlights a conference earlier in August in Shenzhen that attracted over 160 experts from all over China to discuss an initial draft of the legislation.  Mark Obama also spoke at the conference.

It is likely that members of the group responsible for drafting the Court’s judicial interpretation on domestic violence participated in the conference.  As is often the case (and was noted in the update), Shenzhen is taking the lead in issuing promulgating legislation, serving as a pilot project for national legislation. Twenty nine localities have adopted domestic violence-related policies or local legislation.

Shenzhen domestic violence conference
Shenzhen domestic violence conference

This brief blogpost will highlight the following issues raised by the report:

  • Disturbing domestic violence statistics;
  • Details on the draft legislation; and
  • Status of the Court’s domestic violence judicial interpretation.

Domestic violence statistics

The above article and other articles reporting on the Shenzhen conference have provided disturbing statistics on domestic violence.

  • Domestic violence occurs in about 25% of Chinese families;
  • About 10% of juvenile offenders were raised in abusive families (statistics on this issue seem to vary widely);
  • 30% of victims of domestic violence in China (women, children, and elderly) are afraid to speak out against their abusers;
  • The Shenzhen Women’s Federation provided statistics on local (Shenzhen) domestic violence:
    • it occurs in 55 percent of Shenzhen homes among people aged 28-50;
    • 85.8 percent of violent incidents occur between married couples;
    •  93.9 percent of these are cases of husbands being violent towards their wives.
  • A examination of 300 cases reviewed by the NGO Beijing Children’s Legal Aid & Research Center revealed that:
    • 65% of children had been subject to corporal punishment;
    • of 32 cases of child sex abuse, 75% were committed by guardians, with about half committed by fathers.

 Draft legislation issues

Reports on the draft Shenzhen legislation have highlighted the following issues among others:

  • Scope of the persons protected by the legislation–whether persons living together, intimate partners, former spouses or partners should be covered–the initial draft of the Shenzhen Women’s Federation excluded these relationships.  Xu Ruishan, of the Shenzhen Municipal Procuratorate recommended that the legislation protect persons living together and former spouses from domestic violence, because of the prevalence of couples living together without marriage, while Professor Tao Lin, Secretary General of the Shenzhen Family Planning Association, recommended protecting intimate partners, because of the frequent violence in those relationships.
  • The type of domestic violence to be covered by the legislation, whether it should include economic, emotional, and sexual violence, as well as physical.

Status of the domestic violence judicial interpretation

Although the status of the Court’s judicial interpretation (discussed in an earlier blogpost) was not specifically addressed, in the article, Zhou Feng, the head of the #1 Criminal Division of the Court revealed his views that:

  • domestic violence offenses should be able to be either publicly or privately prosecuted;
  • a mandatory and voluntary reporting system should be instituted for entities and individuals who become aware of domestic violence (this is generally seen in domestic violence legislation internationally).

It may be that the timing of the issuance of the domestic violence judicial interpretation is related to the timing of the promulgation of national domestic violence legislation, but Court spokesmen have not been forthcoming on this issue.

Further details on the Shenzhen draft legislation

If anyone reading this blogpost has a copy of the draft Shenzhen legislation, attended the Shenzhen conference, or has further information on the status of the domestic violence judicial interpretation and is willing to share details about them, please use the comment function. Thank you!

And finally, the Supreme People’s Court Monitor thanks followers for their patience during the blog’s downtime. Future posts will address some of the many recent developments.

Court Operations, Court Reform

Seen on the China Policy Institute Blog of the University of Nottingham

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supreme_court_civil_case-400x210 The Supreme People’s Court Observer published (by invitation)  Using Model Cases to Guide the Chinese Courts on the blog of the China Policy Institute of the University of Nottingham. The post discusses:

  • what model cases are;
  • which courts issue them;
  • the authority of model cases;
  • recent model cases the Court;
  • why the Court (and the lower courts) are using them; and
  •  trends in the use of model cases.
Court Operations

The Court Misses an Opportunity to Consult the Public on the Demand Guarantee Interpretation

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On 6 December the Supreme People’s Court (the Court) issued for a nine day comment period for public consultation their draft “regulations concerning some issues related to the trial of disputes involving independent guarantees” (draft demand guarantee interpretation).   The Court missed an opportunity for real public consultation on a judicial interpretation with significant domestic and international commercial implications.

Why was it a missed opportunity?

In the best of worlds, what could have happened?

  • The Court could have used the draft to showcase the Court’s new openness and transparency (which had begun even before the Third Plenum of the 18th Central Committee of the Communist Party (Third Plenum)).
  • The Court could have set a public consultation period long enough for interested parties (domestic and foreign) to provide meaningful input on the draft.  Interested parties could have had a chance review and consider the draft in light of issues that often arise in transactions when demand guarantees are issued by Chinese institutions, and compare it to the “international  standard” on the subject,the  International Chamber of Commerce’s Uniform Rules for Demand Guarantees (URDG).

The reasons why are the Court did so are explained below.

The demand guarantee regulations are classified as a type of judicial interpretation, which, as explained in a prior blogpost, are an important source of legal rules in China.

Why is the draft demand guarantee interpretation important?   Chinese banks often issue demand guarantees to foreign companies on behalf of Chinese contractors, exporters, and investors. When projects go wrong, Chinese companies often go to Chinese court to try to stop payment on their guarantees.

This blogpost describes:

  • What a demand guarantee is;
  • Why the Court drafted this interpretation;
  • What issues the interpretation raises;
  • How the Court handled public participation and possible reasons for doing so; and
  • Avenues for advocating a greater role for public consultation.
  1. What is a demand guarantee?

A demand guarantee (most often called an independent guarantee in Chinese (独立保函)), is often used in construction, engineering and other projects, when the owner of the project requires a contractor to guarantee his performance, often with a guarantee issued by a bank, so that if the contractor fails to meet his obligations, the project owner can be easily compensated.

2. Why the  Court drafted this interpretation

The Court drafted the demand guarantee interpretation because the lower courts are faced with the situation of trying an increasing number of cases involving demand guarantees, with inadequate legislation.

These cases arise because Chinese construction and engineering companies, taking an increasing share of the contracting market outside of China, seek to avoid paying on the demand guarantee to the foreign project owner.  Large construction or engineering contracts are usually secured by a demand guarantee.  The Chinese construction and engineering companies usually obtain these demand guarantees from Chinese banks. When foreign project owners make demands under the demand guarantees, because the construction project does not meet specified standards, Chinese contractors often apply to the Chinese courts to withhold payment to the foreign project owner.  A recent article by a Dacheng Law Firm partner described his experience acting for a Pakistani project owner.

3.  What issues does the interpretation raise?

The issues below concern banks and project owners, Chinese and foreign:

  • Whether demand guarantees should be applicable to domestic transactions;

The Security Law takes a negative view but see further discussion on this issue here;

  • Whether the court should be able to review the underlying transaction when reviewing demand guarantee disputes;

(Article 27 of the draft states yes, that in relation to fraud (as characterized by Article 18), the court should be able to engage in limited review of the underlying transaction)

  • Governing law of and applicability of Chinese mandatory regulations to demand guarantees; and

(the law agreed by the parties, and if the guarantee is silent, the law of the habitual residence of the guarantor; the mandatory provisions of security given to foreign parties are applicable);

  • Procedures for proceedings to withhold payment under a demand guarantee.

4. How the Court handled public consultation and why

The Court handled the public consultation quickly and quietly.   The possible reasons are described below.  The Court did not publicize the draft on its Weibo or Wechat accounts, nor did the Court’s newspaper, the People’s Court Paper, feature an article calling attention to the draft interpretation.  The nine day public consultation did not violate the Court’s own rules, which do not set out consultation periods or methods of consultation.

Why the brief consultation period?

  • Court officials may have felt that they had solicited enough expertise to issue the draft.

The No. 4 civil division, in charge of foreign-related cases and arbitration, had been working on this judicial interpretation for over two years and had organized several invitation-only conferences in 2012 and 2013 to discuss the draft.  This is standard practice in Chinese legislative drafting (as discussed in a this blogpost) and this article. Participant experts at these conferences included:

    • the Ministry of Commerce;
    • CIETAC;
    • the Beijing Arbitration Commission;
    • leading Chinese lawyers.
    • and likely representatives from the principal Chinese banks and major state-owned companies.
  • Personnel changes slowed the issuance of the interpretation.  During 2013, the Court leadership nominated a new head of the No. 4 civil division, but his appointment was subject to National People’s Congress Standing Committee confirmation, delaying action on this and other matters.
  • There may be a push to issue the interpretation before year-end, so that the lower courts can rely on it to resolve cases, a performance indicator for the lower courts.

5.  Can the Bilateral Investment Treaty Negotiations Push for a More Public Consultation of Judicial Interpretations?

The Chinese government is negotiating Bilateral Investment Treaties (BITs) separately with the United States and the European Union.  The 2012 U.S. Model Bilateral Investment Treaty contains a framework for including this type of judicial interpretation in BIT transparency obligations.  Those obligations require (to the extent possible) giving interested parties the chance to comment on “proposed regulations of general application of its central level of government.”  The WTO has jurisprudence on what this means.

If the language ultimately agreed between the United States and China is broad enough to encompass judicial interpretations related to investment, this will ultimately trigger an amendment to transparency requirements for judicial interpretations.

Chinese and foreign individuals and businesses would benefit from greater transparency in judicial interpretations.

Court Operations, Court Reform

Pentatonic themes from the Supreme People’s Court

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Pentatonic themes emanate from five articles on the national court website (www.chinacourt.org), which is managed by the Supreme People’s Court (the Court).  Although these themes appear dissonant, they reflect where the Court is now and where it may be headed. The five articles (or interfaces) relate to the

  • Mass line education and practice campaign;
  • Defense of the new joint interpretation on Internet defamation;
  • Interview with Court President  Zhou Qiang ;
  • Judicial reform: should the judicial committee be abolished; and
  • The Enterprise Bankruptcy Law Interpretation (II).

The first two articles are the most political and the last is most technical.  The middle one is the most significant, although it inevitably requires some decoding, and the fourth is related to the third.

1.  The mass line education and practice campaign

The national court website includes a banner that links to further information about the mass line education and practice campaign.  There is likely an internal Party Propaganda department directive directing that this be done.  The Supreme People’s Procuratorate website has a similar banner, as do the websites of the lower court websites. Communist Party (Party) leadership of the courts means that the mass line education and practice campaign must be featured and implemented in the courts.  This section features articles on themes in the campaign stressed by the Party as well as action by the Court.

 2. Justifying the joint interpretation criminalizing the posting of internet rumors

Several articles on the national court website relate to the joint interpretation criminalizing the posting on the internet of false rumors.  Many others have examined the joint interpretation, the comments by a “responsible person,” and the related Party documents that preceded (and directed) its issuance, so I will not re-hash those issues. The articles on the national court website justify the joint interpretation (and could not do otherwise), including one stating that “freedom of speech” and criminal punishment of false rumors is not contradictory.  It would appear (from the posting of the comments of the responsible person on the judicial interpretation on the website of the Supreme People’s Procuratorate) that the Supreme People’s Court did not take the lead in drafting this interpretation that has drawn derisive comments from the legal community within China.

3.  Court reform under Party leadership: Interview with Court President Zhou Qiang published in Seeking Facts

This article, which links to an interview with Court President Zhou Qiang in the magazine Seeking Facts (the journal of the Central Committee of the Communist Party) is important because he identifies (within the constraints of his role and the audience that he is addressing) the major issues facing the court system and his vision of the development of courts, linking it, (as he must), to the Party line as set out by General Secretary Xi Jinping, including the mass line education and practice campaign.  He uses as his anchor the statement that Xi Jinping made earlier this year:

“In every single legal case in China, we should work hard to ensure that the mass of the public feel they have received fair justice.”

Among the issues that he raises in the interview, Zhou Qiang identifies the new challenges facing the courts—as he sees it, the demands of the people on the courts are continuously increasing, while the relatively retarded capabilities of the courts are unchanged, manifesting themselves in the following types of cases:

  • eminent domain,
  • environmental and
  • internet cases.

He said these types are cases that are particularly difficult to resolve, and the new media environment means that any case at any stage can become high profile—imposing particular pressure on the courts. He touches on a number of issues that relate to public perception of the courts:

  • Obstacles to litigation, such as court refusal to accept cases;
  • Legal aid for the poor;
  • Interference into court operations;
  • Localism and bureaucratic nature; and
  • Wrongful convictions.

On the latter point he says that the criminal justice system should work together to avoid them, and the victims should be compensated and those responsible punished. In a related development, the Party Central Political Legal Committee has issued guidelines on dealing with those cases, although the full text of those guidelines does not seem to have been released.

Zhou Qiang is (inevitably) less specific in suggesting specific solutions to the issues that he has raised.

4.  Judicial reform: should the judicial committee be abolished?

Related to the judicial reform issues discussed by Court president Zhou Qiang, an article on the national court website raises the issue of the role of judicial committees in the Chinese courts  (). This brief article further links to a website with a project jointly sponsored by the national court website and Qinghua University—designed to rekindle discussions on what should become of the judicial committee (see my 2010 article on judicial committees–Article on judicial committees).  Throughout the history of the PRC, court legislation has stated that judicial committees “practice democratic centralism” and that their task is to “sum up judicial experience and to discuss important or difficult cases or other issues relating to judicial work.”  Judicial committees operate according to Communist Party principles of leadership to decide cases that are too difficult or important for an individual judge or judicial panel to decide, to ensure the optimal substantive result (as seen from the institutional perspective of the courts.

The pluses and minuses of judicial committees have been debated within China and abroad for 20 or more years.

5.  Judicial Interpretation of the Bankruptcy Law (II)

This article is included because it relates to the ongoing technical role of the Court.  A second long judicial opinion (but shorter than the first) has been under consideration for some time, and according to reports a third judicial opinion is being drafted.  The Court has wisely included practicing lawyers as well as liquidators in discussions on the future draft.  A draft version of this second interpretation was released in 2012 for discussion by some lower courts as well as specialists.  Comments by the drafters to the press on the interpretation can be found here.

6.  Conclusions?

As to the pentatonic themes:

  • The courts are under the leadership of the Party and must act in accordance with its policy line;
  • The Chinese courts are facing ever more complicated social issues, requiring greater professional (and political) competence;
  • The Chinese courts are facing ever more complicated commercial issues, requiring a greater level of technical competence;
  • Court leadership is exploring more sensitive court reform issues (at a theoretical level);
  • Court leadership is taking concrete steps concerning less controversial reform issues that will benefit “the masses”, such as legal aid to the poor.
Court Operations

Consulting the public on judicial interpretations （向社会公开征求意见）

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This post looks at the role of public consultation when the Supreme People’s Court (Court) drafts judicial interpretations.

This is an important area in which the Court can institute reforms, but has not yet focused on.

Since taking office, Zhou Qiang, the new Court president has made a push for greater transparency in the judiciary, recently urging courts to guarantee the public the right of access to judicial information and supervision.   Earlier this spring, the Court organized a conference on judicial openness, but the conference did not address judicial interpretations, but rather transparency in the area of judicial decisions. Recently the Court released a number of its judicial decisions, but not yet the regulations under which the decisions were released.

How does the Court consult now?

Since 2007, public consultation has been an optional step in drafting judicial interpretations.  Previously, there was no such requirement.

The 2007 judicial interpretation regulations require the drafting group within the Court to “extensively solicit opinions” as part of the drafting process. It means continuing with their customary practice of consulting with affected ministries and other selected organizations. The drafting group can only seek public consultation if the judicial interpretation “involves the vital interests of the people or important difficult issues” and a Court leader has approved.

I described the “customary practice” in my 1993 article on the Supreme People’s Court—after the drafting group within the Court had a draft, which it would often send to the lower courts for their views, the drafting group would send a draft to an invited group, such as affected ministries, and experts at research institutes and universities. In recent years international institutions, such as the Asian Development Bank, have provided technical assistance to the Court in drafting judicial interpretations.  The process is similar to that described by Jamie Horsley for other legislation, who has written extensively on public participation in China.

Chinese leaders, however, have traditionally made law and policy through selective consultations with trusted groups of government officials, academics and other identified experts, supplemented by orchestrated “field investigations” to ascertain the “will” of the people.

Both Chinese and foreign academics have called upon the Court to increase public consultation.

When has the Court consulted the public?

The Court launched its first formal public consultation at the end of 2003, by releasing a draft of the second interpretation of the Marriage Law for public consultation.

In the last few years, among the areas in which the Court has released a consultation draft include:

  • Finance lease contracts;
  • Sales contracts;
  • Internet copyright.

Why wasn’t the public consulted?

For many other interpretations, the Court did not issue a draft for public consultation.  One example is the judicial interpretation of the Law on Foreign-Related Civil Relations. The law and its interpretation relate to China’s body of conflicts (choice of law) and is aimed at developing a comprehensive set of conflict (choice) of law rules for China, based on international principles.  The judicial interpretation sets out legal rules on areas such as:

  • The meaning of mandatory provisions of Chinese law;
  • The applicability of Chinese conflicts of law rules to the jurisdictions of the Hong Kong SAR and Macau SAR; and
  • The meaning of “foreign related.”

These seemingly theoretical issues affect persons ranging from multinational corporations, companies trading with China, parties to arbitrations, to individuals married to Chinese nationals.

According to press reports and my contacts, the Court consulted certain academic experts and lower courts in areas with many foreign disputes.  However a draft was not publicly circulated.  Rationales for not circulating a draft that may easily identified include:

  • Court personnel considered that they and their stable of experts had a good grasp of the issues and did not require widespread input; or
  • Public consultation would require more staff time to sift through the submissions to sort out the ones with useful input.

The danger is that the Court promulgates rules that are inappropriate, unworkable, and are out of touch with the actual practice.

Start with the Civil and Commercial area

The Court should start with the easily doable. The civil and commercial area presents fewest politically sensitive issues.  It would be the easiest area of law in which to permit broad public consultation.

[1] “As for the judicial interpretations involving the vital interests of the people or major difficult problems, public opinions may be solicited upon the decision of the standing vice president or president after obtaining the approval of the leader of the court-in-charge.” Article 17, Provisions of the Supreme People’s Court on Judicial Interpretation Work.