Editor's Note: The Third Seminar of the International Commercial Expert Committee of the Supreme People's Court and Reappointment Ceremony of the First Group of Expert Members was held successfully on Augest 25, 2022. Over 40 experts from more than 20 countries and regions focused on the theme of the Development, Challenges and Countermeasures of Cross-Border Commercial Disputes during the seminar. Extensive and in-depth discussions were held within the framework of four specific issues. The texts of speeches delivered by the participants would be posted on the CICC's website.
STRENGTHENING INTERNATIONAL JUDICIAL ASSISTANCE IN CIVIL AND COMMERCIAL MATTERS TO PROMOTE THE RESOLUTION OF INTERNATIONAL COMMERCIAL DISPUTES
*Director of the International Cooperation Department, Deputy Chief Judge of the Sixth Circuit Court, Head of the Second CICC, Judge of the CICC of the Supreme People's Court of China
Distinguished Justices of SPC,
Dear expert members,
Dear colleagues and guests,
Good afternoon, everyone! I am honored to attend this Third Seminar of the International Commercial Expert Committee of the Supreme People's Court. The resolution of international commercial disputes often involves cross-border service of documents, cross-border evidence collection, ascertainment of foreign laws, recognition and enforcement of foreign judgments, etc. Today I would like to share with you the efforts made by Chinese courts in strengthening international judicial assistance in civil and commercial matters to promote the resolution of international commercial disputes.
First, we make every effort to enhance international judicial assistance in civil and commercial matters.
According to Chapter 27 "Judicial Assistance" of the Civil Procedure Law of the People's Republic of China, Chinese courts request and provide judicial assistance "in accordance with the international treaties concluded or acceded to by the People's Republic of China or the principle of reciprocity". As one of the competent authorities of international judicial assistance, the Supreme People's Court actively carries out international judicial assistance according to applicable laws and treaties, in line with the requirements of taking a coordinated approach to promoting the rule of law at home and in matters involving foreign parties. It is committed both to safeguarding China's sovereignty and security and to respecting the sovereignty of other countries. Let me elaborate on this.
As a starting point, we interprete and applicate international treaties in good faith. China has acceded to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters(the Hague Service Convention) and the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters(the Hague Evidence Convention), and has also concluded 39 bilateral treaties on judicial assistance in civil and commercial matters. Chinese courts faithfully fulfill those obligations under the treaties and adopt a positive attitude towards providing judicial assistance in civil and commercial matters. First, resort to refusal clauses in the treaties is strictly restricted. For example, we interpret the sovereignty and security provision of Article 13 of the Hague Service Convention strictly according to its original meaning, and requests refused by invoking this Article are very rare. Second, in case there are more than one applicable treaty, the one that is more convenient for assistance will be applied. For example, for the requesting country that is a party to both the Hague Convention and a bilateral treaty with China, if translations other than Chinese are acceptable under the latter instrument, we will, to facilitate assistance, accept translations in those languages, regardless of the instrument under which the request is made. Third, guidance is provided to local people's courts at all levels to acquaint them with international treaties in judicial assistance. In January 2013, the Supreme People's Court promulgated the Provisions on Handling Requests for Judicial Assistance in Service of Judicial Documents and Taking of Evidence in Civil and Commercial Cases in accordance with International Conventions and Bilateral Treaties on Judicial Assistance, and its Detailed Rules for the Implementation, which clarified the specific principles and requirements that people's courts should follow when handling requests for international judicial assistance in service of judicial documents, and taking of evidence abroad in civil and commercial cases.
Furthermore, we actively promote the recognition of the reciprocal relationship. In June 2017, the Nanning Statement was adopted at the 2nd China-ASEAN Justice Forum held by the Supreme People's Court. The Statement highlighted that "courts from participating countries will … consider facilitating the appropriate mutual recognition and enforcement of civil or commercial judgments among different jurisdictions. If two countries have not been bound by any international treaty on mutual recognition and enforcement of foreign civil or commercial judgments, both countries may, subject to their domestic laws, presume the existence of their reciprocal relationship, when it comes to the judicial procedure of recognizing or enforcing such judgments made by courts of the other country, provided that the courts of the other country had not refused to recognize or enforce such judgments on the ground of lack of reciprocity." Therefore, the principle of reciprocity applicable in judicial practice is shifted from "factual reciprocity" to "presumed reciprocity", which is conducive to the judicial assistance between China and countries without a binding treaty.
Second, we embrace the concept of cooperation and openness consistently.
Chinese courts have always been promoting international judicial assistance in civil and commercial matters with an open and cooperative mind. We have collaborated with our counterparts in more than 130 countries. The forms of cooperation have expanded from serving documents to all forms of judicial assistance in civil and commercial matters, involving disputes of various causes of action. And the number of cases has increased from less than 10 per year to more than 3,500 per year. Since 2018, the International Cooperation Department of the Supreme People's Court has reviewed, handled, and guided local courts to handle about 4,000 cases of judicial assistance in civil and commercial matters annually, including service, evidence collection, recognition and enforcement of judgment, and legal ascertainment. Even under the circumstance where the COVID-19 pandemic has imposed great restrictions on the flow of people and documents, the case volume has maintained an upward trend.
In the practice of assisting foreign countries in service and evidence collection, problems such as the unclear or inaccurate address of the person to be served or the person to be collected evidence are quite common. The Supreme People's Court directs the undertaking court to verify such issues as much as possible by contacting the parties concerned, inquiring about the business registration information, visiting the property management companies or neighbors, etc. Since 2018, the average response rate of China assisting foreign counties in service is nearly 98%, and the average success rate is about 51%, much higher than the 35% success rate of China requesting foreign counties in document service in the same period.
The Supreme People's Court directly handles all foreign countries' requests for Chinese law ascertainment. Except for those beyond the scope of the judicial organs' duties, we have given responses to all requests. Moreover, we have provided China's relevant laws and judicial practices as detailed as possible so that foreign courts can accurately understand and apply Chinese laws to facilitate dispute resolution.
Despite endless new situations in the practice of judicial assistance in civil and commercial matters, the Supreme People's Court has always been done its best to provide assistance within the framework of domestic law. For example, as for the three requests for service of evidence collection summons made by the Australian court according to Hague Service Convention, we couldn't assist the Australian court in informing banks in China to provide evidence directly abroad. However, in order to protect the legitimate rights and interests of the parties concerned, we decided after consideration to regard those three service requests as requests for evidence collection, so that the Chinese court obtained the relevant account information from banks in China, and gave feedback to the Australian court. In this way, assistance was successfully provided.
To facilitate mutual recognition and enforcement of civil and commercial judgments, on August 31, 2018, Chief Justice and President of SPC Zhou Qiang and Chief Justice Sundaresh Menon of the Supreme Court of Singapore signed the Memorandum of Guidance between the Supreme People's Court of the People's Republic of China and the Supreme Court of Singapore on Recognition and Enforcement of Money Judgments in Commercial Cases. This is conducive to deepening understanding of parties in both countries of the legal system in the other country, as well as enhancing the predictability of recognition and enforcement of judgments in the other country. Hopefully it will help bringing down parallel litigation, reducing litigation costs, and bolstering the confidence of parties in both countries in investment and trade.
Third, we make full use of information technology in international judicial assistance.
On January 1, 2016, the Supreme People's Court initiated an information management platform for international judicial assistance networking four levels of Chinese courts. The platform realized the whole process of online transmission, review and handling of civil judicial assistance requests in courts at all levels, including the service of judicial documents, evidence collection, and recognition and enforcement of foreign judgments, which boosted the quality and efficiency of international judicial assistance.
To mitigate the impact of the COVID-19 pandemic on the circulation of documents, the Supreme People's Court, as one of the central authorities of the Treaty Between the People's Republic of China and Mongolia on Judicial Assistance in Civil and Criminal Matters, recently reached a consensus with the Supreme Court of Mongolia on the acceptance of the electronic request and forwarding the request and result of judicial assistance to each other via dedicated e-mail addresses. Recently, assistance is carried out in this way for the first time. It took only half a month from the request made by the Chinese side to the successful delivery by the Mongolian side, and the improvement in efficiency was really inspiring.
After more than two years' efforts, the judicial assistance management platform of the people's courts was officially networked with the judicial assistance system in civil and commercial matters of the Ministry of Justice last month, realizing mutual transmission of requests. At present, all mutual requests and assistance results in service and evidence collection, etc. between China and foreign countries can be forwarded, inquired and tracked online within China, which further improved efficiency. The system of the Ministry of Justice also accepts electronic requests directly submitted online by foreign requesting countries, and these requests may be forwarded online all the way through. Among all parties to Hague Service Convention, China is at the forefront in this respect.
To wind up my presentation, I'd like to reiterate our commitment to enhancement of International Judicial Assistance. On the basis of abidance by international treaties and mutual respect for sovereignty, we are willing to make full use of the achievements of building smart courts, as well as to strengthen cooperation with foreign
Related Links: 高晓力：加强民商事国际司法协助 服务国际商事争议解决
*The original text is Chinese and has been translated into English for reference only. If there is any inconsistency or ambiguity between the Chinese version and the English version, the Chinese version shall prevail.