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Gao Xiaoli: Ascertainment of Foreign Law in Foreign-Related Civil and Commercial Adjudication Practice

From: WUHAN UNIVERSITY INTERNATIONAL LAW REVIEW    Gao Xiaoli     Updated: 2014-01-30

Keywords: foreign-related civil and commercial adjudication/ foreign law/ Ascertainment of Foreign Law/

Abstract: This article seeks to analyze and explore the major issues that the Chinese courts are currently facing on how to ascertain foreign law in foreign-related civil and commercial cases. Revolving around key questions such as who has the responsibility to ascertain foreign law, how to ascertain foreign law, how to determine the contents of foreign law, when to determine that “foreign law cannot be ascertained”, application of law when foreign law cannot be ascertained, etc., this article tries to comb through the relevant laws and judicial interpretations, explore the real intention of the articles of judicial interpretation and meanwhile point out the problems of the courts’ practice, for example, shifting the burden of ascertaining foreign law, failure to make full use of effective means to ascertain foreign law, improperly determining that “foreign law cannot be ascertained”, etc.. For those problems, the author voices out her own views, aiming to provide suggestions for Chinese courts to ascertain and properly apply foreign law during the adjudication process.

I.Division of Responsibility in Ascertaining Foreign Law

II.Methods that the Court may adopt to Ascertain Foreign Law

III.Determination of Contents of Foreign Law

IV.Consequences When Foreign Law cannot be Ascertained

V.Other Problems to be Noted

In foreign-related civil and commercial adjudication practice of China at present, there are two “bottleneck” problems restricting the trial efficiency: 1. service abroad; 2. Ascertainment of Foreign Law. In the cases when foreign law shall be applied according to the guidance of the conflict of laws rules in China, how Chinese judges could ascertain foreign law, including how to acquire information of foreign law and how to correctly understand foreign law, is a difficult problem in trial practice. This problem cannot be easily resolved, thus restricting the trial efficiency. I will present my own views below about the various aspects of the problems on Ascertainment of  Foreign Law according to relevant provisions of Chinese laws and judicial interpretations in combination with trial practice.

I.Division of Responsibility in Ascertaining Foreign Law

When a foreign law is applied to a case, who has the responsibility for ascertaining such foreign law? The judge or the parties involved? With regard to this, the textbooks published in China often mention that: different countries have different understandings of the nature of foreign law, and there are three major schools of thoughts: the fact theory, the law theory and the compromise theory, so the responsibility for ascertaining the contents of foreign law are assumed by the parties involved, the judge or both in different countries①.

According to researches of scholars, the law theory of foreign law is widely adopted in Germany, the Netherlands, Austria, Italy, etc.. There are two reasons for German scholars to assert the law theory of foreign law: (1) reasoning structure of syllogism. The syllogism is used generally in a lawsuit, i.e., the law, the fact and the conclusion. In hearing a foreign-related case, the relevant foreign law is undoubtedly different from the fact, it acted as the major premise, the same as the domestic law. (2) Incorporation theory of foreign law, i.e., the relevant foreign law is incorporated into the domestic law and applied. When certain foreign law is applied according to the rules of conflict of laws, it replaces the domestic law, and is equated with the domestic law. This understanding is deep-rooted in Germany and Japan. According to the law theory of foreign law, the content of foreign law is ascertained by the judge, and this is the result of Roman law on  division of labour between the judge and the parties involved in a lawsuit. The motto of Roman law “you provide the fact and I provide the law”, originates from the understanding that the parties involved are clearer about the fact than the judge, while the judge is more knowledgeable about the law, i.e., the alleged “the judge knows the law”②.

Affected by the Theory of International Comity of the Netherlands, the fact theory of foreign law is adopted in countries like the Great Britain, the USA, etc. and foreign law is considered as a fact. British courts believe that the judges are only duty bound to apply domestic laws with no obligation to apply foreign laws③.

In fact, most countries do not simply use the above “law theory” or “fact theory” to determine the contents of foreign law. Foreign law is actually in the middle of the fact and the law.It is different from the fact provided by the parties involved according to the debate doctrine, but also different from the domestic law applied by the court according to the doctrine of ex officio. For example, Morris, the famous scholar of conflict of laws pointed out: “in Britain, foreign law is a matter of fact, but it is a special kind of fact.” In juridical practice, British courts evaluate the authorities provided by the parties involved or expert testimony according to the English law on evidence, but the courts are not bound; if the judge has knowledge of the foreign law, the judge can also decide directly. It can be seen that, the fact theory of foreign law is used in the UK in a loose sense. Article 293 of Civil Procedure Law of Germany stipulates: “current law, customary law, the autonomous laws and regulations abroad, insofar as they are unknown to the courts, shall be ascertained. Ascertainment of these laws and regulations is not limited to evidence provided by the parties involved ; the court has the power to utilize other investigation methods and give necessary orders for such purpose. ” According to these regulations, the parties involved have the obligations to provide evidence of foreign law, but are not able to absolutely bind the courts. Obviously, Germany does not consider foreign law as a kind of law strictly④.

In China, who undertakes the obligation to ascertain foreign law has been hotly debated amongst scholars, but the views largely waver among the above views. The Law of the People's Republic of China on Choice of Law for Foreign-related Civil Relationships (hereinafter referred to as “Law on Choice of Law for Foreign-related Civil Relationships”) has answered this question at the legislative level for the first time. Article 10.1 stipulates that “Foreign law applicable to foreign-related civil relationships shall be ascertained by the people’s court, arbitration authority or administrative organ. If any party chooses the applicable foreign law, he shall provide the law of that country.”

Previously, the Supreme People’s Court specified the attitude in juridical practice through the provisions in various judicial interpretations: (1) Answers to Certain Questions Concerning the Application of the Foreign Economic Contract Law by the Supreme People’s Court in 1987 (repealed, (hereinafter referred to as Judicial Interpretation in 1987) at Item 11 of Part II “On Handling Law Application Problems in Disputes of Foreign-Related Economic Contract” stipulates: “when the proper law which should be applied is foreign law, if the people’s court is not certain of such law, it can ascertain the same through the following ways: 1.to be provided by the parties;2. to be provided by our embassy or consulate in the foreign country; 3. To be provided  by the embassy of the foreign country in China; 4. To be provided by Chinese or foreign legal experts. If the applicable foreign law cannot be determined through the above methods, the law of the People's Republic of China may be applied. ” (2) Article 193 of Opinions of the Supreme People's Court on Several Issues concerning the Implementation  of the General Principles of the Civil Law of the People's Republic of China (for Trial Implementation) (hereinafter referred to as Judicial Interpretation in 1988) (FBF[