Gao Xiaoli: Ascertainment of Foreign Law in Foreign-Related Civil and Commercial Adjudication Practice
From: WUHAN UNIVERSITY INTERNATIONAL LAW REVIEW Gao Xiaoli Updated: 2014-01-30Keywords: 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[1988] No. 6) by the Supreme People’s Court in 1988 stipulates: “The applicable foreign law may be ascertained through the following ways: ① To be provided by the parties; ② To be provided by the central organ of the country which has concluded judicial assistance convention; ③ To be provided by our embassy or consulate in the foreign country; ④ To be provided by the embassy of the foreign country in China; ⑤ To be provided by Chinese or foreign legal experts. If the applicable foreign law still cannot be determined through the above methods, the law of the People's Republic of China may be applied. ”(3) The Provisions of the Supreme People’s Court on Certain Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Civil or Commercial Contracts Involving Foreign Elements in 2007(law explanation [2007] No.14) (repealed, hereinafter referred to as Judicial Interpretation in 2007) Article 9.1 stipulates: “Where the parties thereto choose or alter the applicable law over the contractual disputes to be foreign law, the content of such law should be provided or proved by the parties.” ” Article 9.2 stipulates: “When People's courts, in accordance with the principle of closest connection, determines the applicable law over the relevant contractual disputes to be foreign law, it may identify such foreign law by itself and may also require the relevant parties to provide or prove the content of the said foreign law. ”Article 9.3 stipulates: “If the parties and the people's court fail, through appropriate channels, to identify the content of the relevant foreign law, the people’s court may apply the laws of the People's Republic of China. ”
Judging from the provisions of the two judicial interpretations in 1987 and 1988, the Supreme People’s Court’s attitude towards the issue of Ascertainment of Foreign Law is very clear, i.e., the people’s court has the obligation to ascertain foreign law, “provision by the parties” is just one of the ways for our court to ascertain foreign law. The judicial interpretation in 2007 is specially made for the proper law of foreign-related contract disputes. It distinguishes between the situation where the parties involved select to apply foreign law and the situation where people’s court determines the applicable foreign law according to the closest connection principle in assigning the obligations of ascertaining foreign law. The main purpose is to assign such responsibility to the parties where appropriate, so as to relieve the court of such responsibility. The main consideration is that when the parties involved elect to apply a particular foreign law, they should have a better understanding of such foreign law than the judge. To improve trial efficiency it is appropriate that the parties involved undertake the obligations of providing such foreign law under these circumstances. Article 10 of Law of the Application of Law for Foreign-Related Civil Relations, based on the experience from the previous juridical practice, sets out the obligation of ascertaining foreign law in a reasonable manner, i.e., the law enforcement agencies, including the court, has the obligation to ascertain foreign law, but if the parties involved elect to apply a particular foreign law, they should bear the responsibility of proving the same. It can be seen, from our legislation and juridical practice that we do not simply accept the alleged “fact theory” or “law theory” of foreign law, but adopts the practice that the court (judge) has the primary responsibility to ascertain foreign law but may be assisted by materials provided by the parties involved according to the actual circumstances.
It is also a general consensus amongst the academia of private international law of our country that the debate on categorization of foreign law as “fact” or “law” is of no great practical significance in China⑤. Actually, foreign law is neither pure fact, nor pure law, but “law with special nature”⑥.
Some scholars believe that, most of our courts treat foreign law as a “fact”, and Law of the Application of Law for Foreign-Related Civil Relations turns around the situation that our court passes the burden of ascertaining foreign law to the parties involved according to the above judicial interpretations, particularly judging from the background of introducing Law of the Application of Law for Foreign-Related Civil Relations, when the above regulations are enacted exactly because some committee members proposed that “it should be the responsibility of the people’s court to ascertain foreign law”. I believe that, this is a misunderstanding of the judicial interpretations. In fact, as previously mentioned, this piece of legislation was enacted after absorbing the reasonable components of these judicial interpretations, trial practice experience of our courts over the past years in combination withtheoretical researches. That is to say, judicial interpretation is not inconsistent with the attitude of the legislation on the division of responsibility of ascertaining foreign law.
II.Methods that the Court may Adopt to Ascertain Foreign Law
Our courts have the obligation to ascertain foreign law, but how does the judge ascertain foreign law? There is no provision in our law on methods to ascertain foreign law. Five methods that our courts may adopt to ascertain foreign law are listed in Article 193 of Judicial Interpretation in 1988 as follows: (1) To be provided by the parties; (2) To be provided by the central organ of the country which has concluded judicial assistance convention; (3) To be provided by our embassy or consulate in the foreign country; (4) To be provided by the embassy of the foreign country in China; (5) To be provided by Chinese or foreign legal experts.
1. Ascertainment by Parties
Ascertainment of Foreign Law by the parties is one of the ways for our courts to ascertain foreign law. In juridical practice, this method is frequently used. Generally, the parties involved would provide legal opinions given by certain foreign lawyer about the contents and understanding of the relevant foreign law to the court, and in a few cases, the legal attorney of the party gives his own opinions about the relevant foreign law. Of course, the court does not necessarily require lawyer’s opinions about foreign law, and the parties involved can give their own opinions about the relevant foreign law to the court if they have sufficient understanding and have the capabilities of giving opinions on foreign law. In juridical practice, some courts require the parties involved to obtain notarization or attestation for legal opinions of foreign lawyers about foreign law. I opine that this requirement is unreasonable, and goes too far, because: these materials are the opinions of the parties involved about the content and understanding of the relevant foreign law, for the purpose of helping the judge ascertain foreign law, but not for proving the identity of the party or an objective fact of the case. Therefore it is unnecessary to obtain notarization or attestation, and there is no requirement for this in our laws and judicial interpretations. Relevant laws and judicial interpretations in China specify that the parties involved must ensure proper notarization or attestation for the evidential materials on identity and authorization matters that were obtained abroad, because these materials are formed abroad, hence difficult for our judges to determine the authenticity, thus the notarization or attestation procedures are required to formally ensure the authenticity of these materials; but for the evidential materials proving facts of the case, notarization or attestation procedures are only optional for the parties, because the evidential materials on facts must be subject to trial and examination, and it is only of practical significance to have notarization or attestation procedures in cases where the parties involved have objections to the evidential materials or are absent in the hearing.
2. Ascertainment Through Treaty
At present, we have signed civil and commercial judicial assistance treaties with over 30 countries, and “exchange of legal information” is generally stipulated in these bilateral treaties. For example, Clause 1 of Article 27 “Exchange of Information” of Treaty of the People's Republic of China and the Republic of France on Judicial Assistance in Civil and Commercial Matters, the first bilateral civil and commercial judicial assistance treaty signed by us in 1987, stipulates: “one contracting party shall provide the information on the prevailing or past laws in this country, as well as the information about civil, commercial juridical practice in this country to the other party according to the request. ” Article 27 of Bilateral Civil and Commercial Judicial Assistance Treaty Between the People’s Republic of China and Brazil signed in 2009 has similar provisions: “For exchange of legal information, both parties shall mutually exchange and enforce the information about the prevailing law or juridical practice in this country according to the request.” According to the provisions of the above treaties, both parties shall directly communicate through central offices when mutually requesting for and providing judicial assistance The central office is generally the Ministry of Justice, and the central office shall promote cooperation between competent authorities. Ascertaining foreign law through treaty should be an effective way of ascertaining foreign law in juridical practice, however, from the experience of juridical practice in China, this method has not been utilized effectively, perhaps because the procedures are tedious. According to the provisions of the treaty, generally speaking, if the court hopes to ascertain foreign law through treaty provisions, the court must report this request and the relevant materials, including translation, to the Supreme People’s Court, for the Supreme People’s Court to pass to the Ministry of Justice, then the Ministry of Justice of China would transfer it to the Ministry of Justice of the foreign country, which will then transfer the same to the competent authority of that country. Thereafter feedback will be provided through the same route. As a matter of fact, the Supreme People’s Court has handled judicial assistance matters on providing Chinese legal information to foreign courts before. For example, in 2007, when hearing a dispute on a sale and purchase agreement concerning a Chinese party, the Polish court determined that according to the conflict of law rules of Poland, the applicable law was PRC law. Polish court found the provisions of Chinese Contract Law through the internet but could not understand and determine its meaning and the connotations thus requested our court to provide relevant information of Chinese law according to Article 26 “exchange of legal information” of Treaty of the People's Republic of China and the People's Republic of Poland on Mutual Assistance in Civil and Criminal Matters. The Ministry of Justice of our country transferred the request to the Supreme People's Court for handling. The Supreme People's Court provided the relevant provisions of Chinese law and the general practice in judicial practice on six issues proposed by the Polish court, including determination of the status of a legal person, the third party's obligations to a debt and the transfer of a debt, mistake and its legal consequences, set off of mutual debts, the restriction of exercise of contractual rights and the calculation of interest for late payment in sale and purchase contracts. Thereafter, the further question of the standard for interest to be paid for late payment of purchase price in a sale and purchase contract raised by the Polish court was also answered through the same approach. Take this as an example, Chinese courts should also make full use of treaty mechanism to ascertain foreign law, and there is great potential in this regard.
3.Ascertainment Through Diplomatic Channels
The provision of foreign laws through our embassies and consulates in that country and through their embassies in our country are all Ascertainment of Foreign Laws through diplomatic channels. It is understood that our diplomatic departments have inquired about foreign legal materials for the needs of our legislative organs during the course of our legislation process, but there is almost no practice of inquiring about foreign legal materials for the needs of our courts in handling civil and commercial cases. The courts of our country have never voluntarily contacted the foreign affairs department of our country to request for provision of foreign law through our country's embassy or consulate in foreign country or foreign embassy in our country. There is a lack of experience in this area. But even so, I believe that, if necessary, our courts can fully utilize diplomatic channels for the Ascertainment of Foreign Laws.
4. Ascertainment through Expert
China's courts may entrust Chinese or foreign legal experts to provide opinions on foreign law. This is appointment by the court, different from the situation that parties involved adduce opinions on foreign laws by themselves. In the current judicial practice, it is rare for the court to appoint legal experts to provide opinions on foreign law. The main reason is that at present there is no neutral institution in our country that can provide expert opinions of foreign law for the court, and there is no database of foreign legal experts. There are also very few law professors in our country who are so proficient in a foreign law that can be called experts. It is difficult for the court to locate foreign law experts, and there is also a lack of standard for appointing them. Under these circumstances, the court's initiative to appoint foreign legal experts to issue opinions on foreign law is easy to be challenged by the parties involved, that is, it is difficult for the court to identify the experts in foreign law who can be agreed by both parties. Max Planck Institute for Comparative and International Private Law located at ⑦Hamburg, Germany (hereinafter referred to as the “Institute”) is the most effective institution to provide the court with opinions on foreign law to my knowledge. Founded in 1926, originally named as Emperor William's Institute of Foreign Private Law and International Law, the Institute has been funded by the government since the Second World War and is devoted to basic researches in the fields of comparative law, European Union law, international private law, commercial law and procedural law, looking at the possibility of unification of laws in the European Union and even in the world. It is equipped with specialist researchers, whose research fields cover laws in the United States, the European Union, Southeast Europe, the Middle East and the East Asia including China, South Korea, Japan, Latin America, South Africa, Russia and other countries and regions. An important function of the Institute is to accept appointments of the German courts to provide opinions on foreign law when foreign laws are to be applied. Such a platform can provide expert advice on foreign law for the German courts to consider in a relatively independent and objective manner. I believe that if similar institutions were established in our country, the difficulties faced by our courts in Ascertainment of Foreign Laws could be largely solved. It is suggested that based on comparative law research institutes already established by law schools in colleges and universities or neutral research institutes such as the Institute of Applied Jurisprudence of the Supreme People's Court, a similar foreign law research institute like the Institute should be established in China with research fellows recruited from Chinese and foreign law professors and lawyers who are proficient in civil and commercial law of a particular country. Such institute, on the one hand may provide an effective platform for Chinese courts to ascertain foreign laws, on the other hand, may direct more scholars to study specific foreign laws in depth, and provide the necessary foreign legal resources for Chinese citizens and enterprises to communicate with other countries.
The above is a practical analysis of the methods for the Ascertainment of Foreign Law stipulated in the judicial interpretations. Our country's law does not stipulate the way for Ascertainment of Foreign Laws, from another angle, that is to say, our country's law does not restrict the way the court may adopt to ascertain foreign law. In my opinion, judges in our country can definitely try to ascertain foreign laws through other effective means according to their own abilities in judicial practice. For example, foreign law databases or relevant authoritative documents and legal reports can be accessed through the Internet and libraries to obtain information on foreign law. As to case law countries, we should pay attention to the inquiry of case law in addition to statutes. At present, the courts of our country impose high requirements for the judges engaged in foreign civil and commercial cases, who shall generally be proficient in foreign language. Some judges even have the experience of studying foreign law. These judges can certainly ascertain foreign law through their own ability, without being confined to the specific form or way to ascertain foreign law.
In addition, if a particular issue of foreign law has been adjudicated by the foreign court, the judges of our country may also derive understandings of such foreign law through reading the relevant part of the foreign judgment discussing the applicable foreign law. For example, during the trial of the Supreme People's Court in the case of the share dispute between the appellant, Canada Green Valley Investment Co., Ltd. and the respondent, Hong Kong Green Valley Investment Co., Ltd. (2002) MSZZ No.14, the question arose as to whether according to Hong Kong law it is legitimate for the case to be brought by the Hong Kong Green Valley Investment Co., Ltd. The Supreme People's Court decided: Hong Kong Green Valley Investment Co., Ltd. is a limited liability company established in Hong Kong under the Companies Ordinance. Hao Xiaoying, Lv Jiadong, Huang Yaolin, Huang Guangming and Liu Xinran are shareholders of the Company each holding 20% shares. As for whether Huang Yaolin, Huang Guanglin and Liu Xinran can file the case through the so-called Extraordinary General Meeting Resolution, it involves the legal person's capacity for civil conduct. In the light of Article 184 of the Supreme People's Court's opinions on the implementation of the General Principles of the Civil Law of the People's Republic of China (tentative), the case shall be determined in accordance with the Hong Kong law as to whether Huang Yaolin, Huang Guangming and Liu Xinran holding 60% of the Company’s shares can bring the lawsuit in this case on behalf of the Hong Kong Green Valley Investment Co., Ltd. through the resolution of the shareholders’ meeting without the participation of Hao Xiaoying and Lv Jiadong. In accordance with the provisions of the Hong Kong Companies Ordinance, resolutions on major matters of the Company such as the convening of shareholders’ meetings or extraordinary shareholders’ meetings shall be conducted in accordance with the provisions of the Articles of Association. In this case, the extraordinary shareholders' meeting attended by Huang Yaolin and Huang Guangming resolved to bring the lawsuit. During the meeting Huang Yaolin also represented Liu Xinran, that is to say, the shareholders who accounted for 60% of the company's shares being the majority attended the extraordinary shareholders' meeting and passed the resolution to bring the lawsuit. In accordance with the provisions of the Articles of Association of the Hong Kong Green Valley Investment Co., Ltd., all shareholders shall be notified of such meeting, but Hao Xiaoying and Lv Jiadong had not been effectively notified of such meeting. Therefore, the extraordinary general meeting violated the provisions of the Articles of Association. However, the resolution of the extraordinary shareholders' meeting made on May 12, 1998 was intended to safeguard the interests of the Hong Kong Green Valley Investment Co., Ltd. and did not constitute fraud against the minority shareholders of Hao Xiaoying and Lv Jiadong, although being contrary to the interests of Hao Xiaoying and Lv Jiadong. According to the legal principles established in case law in Hong Kong, the extraordinary shareholders’ meeting shall be deemed to be valid. Therefore, the lawsuit filed according to the resolution of extraordinary general meeting made by Hong Kong Green Valley Investment Co., Ltd. on May12, 1998 was valid. How did the Supreme People’s Court ascertain law of Hong Kong in this case? In particular, there is case law in addition to Hong Kong Companies Ordinance. In fact, parties involved in the case had filed proceedings before the Hong Kong court with respect to the validity of the extraordinary general meeting and Hong Kong court had decided on this issue. Although such judgment was not recognized by mainland courts, it objectively provided clues for judges of mainland courts to understand and master the law of Hong Kong that shall be applied to the case hence may be referred to. In this case, conclusion was reached through the consideration of the aggregate of the Hong Kong law provided by the parties involved, provisions of articles of association, the decided case in Hong Kong on the same issue and the spirit of Hong Kong case law reflected therein, etc., and the dispute between the parties on the locus standi of Hong Kong Green Valley Investment Co., Ltd. in the case was hence resolved.
III.Determination of Contents of Foreign Law
Two aspects are involved in ascertaining foreign law: 1. “access”; 2. “determination”. “Access” refers to how the court gains access to foreign law through specific approaches; “determination” refers to the process that after “access” to foreign law through these specific approaches, how the court properly determines the meaning and contents of foreign law and makes a correct judgment by applying it to the current case. The latter is even more crucial.
With respect to the way to determine the contents of foreign law and its proper application, it is set out in Article 18 of FS [2012] No. 24 the Interpretations of the Supreme People's Court on Several Issues Concerning Application of Law of the People's Republic of China on Choice of Law for Foreign-Related Civil Relationships (I) (hereinafter referred to as Judicial Interpretation in 2012) that “People’s Court shall fully listen to opinions of parties involved towards the contents and understanding of the applicable foreign law and its application. If parties involved have no objections towards the contents, understanding and application of such foreign law, the People’s Court may affirm the same; if parties have dispute, the People’s Court shall examine and determine.” According to this provision, whether the foreign law as obtained by the court ex officio, including foreign law accessed through a treaty by the court, or provided by parties involved in performance of their obligations, all parties involved shall be fully apprised of its contents. The court shall organize a debate amongst all parties involved, and fully listen to their opinions towards the contents, understanding and application of the foreign law, so as to determine the way to apply the foreign law. During the process of discussion of the draft of the judicial interpretation above, it was raised that for foreign law accessed by the court ex officio, especially foreign law accessed through a treaty, the court may use it as the basis for judgment directly without hearing opinions of the parties involved. After further examination, the majority opines that even if foreign law is accessed through a treaty, since rights and obligations of parties involved would be finally determined, opinions of the parties involved on foreign law shall be fully heard, which is also conducive for applying foreign law properly by Chinese judges.
In practice, two situations may result from the debate between the parties involved on foreign law: 1. The Parties involved unanimously agree or advocate the same foreign law, in this scenario, Chinese court may apply the foreign law under consensus, but it shall further pay attention as to whether such application may violate social public interest of our country or infringe legitimate interests of a third party. 2. the Parties involved have disputes over the contents and meaning of the relevant foreign law, in such scenario, it shall be conclusively determined by the judge in a reasonable manner. In the process, judges shall make a judgment independently utilizing with their legal skills and knowledge. In fact, the process of stating their opinions toward foreign law by parties involved is a process to help judges form their inner conviction and proper understanding of foreign law. There is no doubt that this is a great challenge to the judges’ personal professional ability. After all, Chinese judges are only experts in Chinese law and it is hard if not impossible for them to be experts in foreign laws. Under the circumstance of having opposite opinions on application of foreign law held by parties involved, reaching the proper judgment which would not be laughed at is not a low standard to meet. But from another perspective, judges have an obligation to apply foreign law properly. Therefore, this requirement is not high either.
For example, in a dispute over contracts with Hong Kong element tried by the Supreme People’s Court, the existence and efficacy of the contracts involved in the case shall be determined by applying the law of Hong Kong as agreed by parties involved. Both parties provided legal opinions issued by their Hong Kong lawyers respectively, but opinions are completely opposite. To this end, the court specially organized a court debate for parties involved, and required their Hong Kong lawyers to appear in court to be examined by the court, which process helped judges in their inner conviction on how to apply the law of Hong Kong .
Some scholars postulate that the Ascertainment of Foreign Law to some extent can be an object “manipulated” by parties involved. Therefore, for the avoidance of such phenomenon, under German law, judges shall not only rely on materials of foreign law presented by parties involved, but shall ascertain foreign law through proper approaches. They shall not only understand the foreign written statutory rules, but also investigate and understand the real application of foreign law in the country of origin, so as to conclude judgments by applying foreign law in the same way as foreign judges do⑩. Such requirement is obviously higher, but “making judgments by applying foreign law as foreign judges” shall be the same pursuit for Chinese judges.
IV.Consequences When the Relevant Foreign Law cannot be Ascertained
Regarding the application of laws when the foreign law cannot be ascertained, there are the following solutions in various countries: (1) to presume that the applicable foreign law is the same as the law of the forum and apply the same; (2) take the law of the forum as the auxiliary applicable law; (3) dismiss the claims and defenses of the parties involved; (4) apply the foreign law which is similar to the law that should be applied; (5) apply auxiliary connecting points to select the applicable law again; (6) apply the law of the country with which the parties involved have the closest connection; (7) apply general principles of law (11).
It is explicitly stipulated in Clause 2 of Article 10 of the Law of the Application of Law for Foreign-related Civil Relations that: “when the foreign law cannot be ascertained or the laws of the country have no relevant provisions, the laws of the People’s Republic of China shall be applied.” Accordingly, in case that the applicable foreign law cannot be ascertained, Chinese court shall apply Chinese law to hear cases immediately. But there is an important precondition, that is, how to determine that “the foreign law cannot be ascertained”? Different situations are distinguished by Article 17 of the Judicial Interpretation in 2012, and this is explicitly stipulated in two clauses.
1.Under the circumstance that the court has the obligation to identify foreign law, whether the court can only determine that “the foreign law cannot be ascertained” in the event that the applicable foreign law can still not be obtained despite that every way has been tried.
It is pointed out by some that, according to the expression in Article 193 of the Judicial Interpretation in 1988, “where it still cannot be ascertained through the above methods, the law of the People’s Republic of China shall be applied”. Therefore, the court can only determine that “foreign law cannot be ascertained” after the above five ways have been exhausted. In fact, this provision does not mean this, instead, its real intention is to emphasize that the court shall do its utmost to identify foreign law and cannot just try it out, and it does not require exhaustion of all five ways. Because of this, it is stipulated in Clause 1 of Article 17 of the Judicial Interpretation in 2012 that: “where foreign law still cannot be ascertained by the people’s court through means of provision by the parties involved, ascertainment through effective international treaty of the People's Republic of China and provision by the Chinese or foreign legal experts, it may be determined that foreign law cannot be ascertained.” This provision does not repeat the five ways stipulated in Article 193 of the Judicial Interpretation in 1988, instead, it only lists out several ways with applicable experiences in the previous juridical practice, including three ways: provision by parties, ascertainment through treaties and provision by experts. It intends to emphasize that there is no need to exhaust all possible means, because the efficiency of the foreign-related civil and commercial cases will be undoubtedly greatly reduced if the court is required to exhaust the above five ways. But this provision still emphasizes that the court can only determine that “foreign law cannot be ascertained” under the circumstances that “the relevant foreign law cannot be obtained through reasonable means”. Therefore, in juridical practice, the court cannot apply the simplest way only – to be provided by the parties involved, and indiscreetly determines that “the foreign law cannot be ascertained” in case that the parties involved fail to provide the applicable foreign law. Instead, it shall try its best to identify the applicable foreign law. Because if it is easily determined that “foreign law cannot be ascertained”, Chinese law will inevitably be applied in the cases and as a result, the value and significance of international private law of China will undoubtedly be greatly reduced. Judges have the responsibility to properly identify foreign law and correctly apply it under the circumstances that such foreign law shall be applied according to the conflict of laws rules of China, and they shall not take the determination of “foreign law cannot be ascertained” as a short-cut to easily achieve the aim of not applying foreign law.
2.Under the circumstance that the parties involved have the obligation to provide foreign law, how to determine that “the foreign law cannot be ascertained”
It is explicitly stipulated in Clause 2 of Article 17 of the Judicial Interpretation in 2012 that: “as stipulated in Clause 1 of Article 10 of the Law of the Application of Law for Foreign-related Civil Relations, the parties involved shall provide the applicable foreign law, and where it fails to provide such foreign law without justifiable reasons within the reasonable time limit designated by the People’s Court, it can be determined that the foreign law cannot be ascertained.” That is, under the circumstance that the parties involved elect to apply foreign law, they shall provide such foreign law, and as for this, the people’s court shall designate a reasonable time limit to the parties involved. With regard to the reasonable time limit, the judicial interpretation does not impose any “universal limit” of a definite period, be it one month or three months. It aims to let the judges determine the time limit in a reasonable way according to specific situation of each case. However, if the parties involved refuse to provide foreign law to the court without “justifiable reasons” within the reasonable time limit designated by the court, or if the relevant foreign law cannot be provided, the people’s court can determine that “the foreign law cannot be ascertained”. In other words, if the parties involved have “justifiable reasons” for not providing foreign laws, the people’s court shall extend the time limit appropriately so that the parties involved can provide the applicable foreign law. Whether the reason is “justifiable” or no shall be subject to the discretion of the judge in each case. On the one hand, the court shall prevent the parties involved from delaying the lawsuit deliberately, and on the other hand, the court shall avoid not providing parties with sufficient time and opportunities to provide foreign law.
3.Under the circumstance that the parties involved have the obligation to provide foreign law, if the parties involved have disputes over the foreign law, and each sticks to his own view, whether it can be determined that “the foreign law cannot be ascertained”
This is a prominent problem in the current juridical practice. The answer is in the negative. But at present, there are cases where the court determined that “the foreign law cannot be ascertained”, just because the parties involved have opposite opinions on the relevant foreign law even though they have already submitted their evidence on such foreign law, and then applied Chinese law in hearing the cases. This is not a proper practice. The fact that the parties involved have disputes over the applicable foreign law has already indicated the attitude of the parties towards such foreign law. It indicates that Ascertainment of Foreign Law has been submitted to the court and it is just that for the sake of their own interests, there are different or even opposite understandings of the relevant foreign law. The court cannot say that the parties could not provide foreign law on that basis. This is exactly the situation when “the parties involved have disputes” stipulated in Article 18 of the Judicial Interpretation in 2012. In that case, the court shall review and finally identify the applicable foreign law, rather than draw a conclusion that “the foreign law cannot be ascertained”.
Some scholars comment that, the courts of China have shown a tendency to abuse the notion that “the foreign law cannot be ascertained” in juridical practice, and the provisions on the situation when foreign law cannot be ascertained have actually become a means of restricting the application of foreign laws by Chinese courts in many cases. As a result, the purpose of the application of conflict of laws rules has failed, and the scheme to ascertain foreign law has been used as a tool to exclude the application of foreign law (12). In the juridical practice, as for the phenomena that the judges assume no responsibility for the Ascertainment of Foreign Law or take negative attitudes toward the Ascertainment of Foreign Law, there are two aspects: first, the attitude to treat foreign law as “facts”, requiring the parties involved to take responsibility to prove; second, the abuse of the notion that “the foreign law cannot be ascertained” (13). If the judges in China all arbitrarily turn to apply Chinese law in hearing cases with the reason that “the foreign law cannot be ascertained”, it is not difficult to imagine that the significance of Chinese private international law will disappear. Fentiman, a British international private law scholar, once pointed out that: “in the international private law, there are few issues which are more important than the Ascertainment of Foreign Law, and standing at a higher level, the identification process of foreign law is particularly relevant to the survival of the conflict of laws itself (14).”
To sum up, neither can the court simply determine that “the foreign law cannot be ascertained” because the parties involved cannot provide such foreign law, nor is the court obliged to exhaust all possible means to identify the applicable foreign law. The court shall, according to the actual situation of each case, try to adopt various ways, including other effective ways that are not stipulated in the judicial interpretations of China, to identify foreign law and try to decide and apply foreign law in the way as the foreign judges do. In the event that foreign law cannot be ascertained through these efforts, the judge shall set out in detail the efforts made by the judge and the parties and the reasons for the conclusion that “the foreign law cannot be ascertained” in the judgment. The exclusion of foreign law from the application due to failure to ascertain the same is an exception to the application of foreign law. Therefore, the court shall explain the reasons and prove the same specifically. In addition, explanations shall also be offered on the objective circumstances and the deduction process based upon which the judge decides that the foreign law cannot be ascertained (15).
V.Other Problems to be Noted
In the foreign-related civil and commercial trial practice, in regard to Ascertainment of Foreign Law, the following problems also arise:
1.The Ascertainment of Foreign Law is different from ascertainment of international treaties and international conventions
Although applications of foreign laws and international treaties as well as international conventions are all characteristics of civil and commercial cases with foreign element involved that distinguish them from domestic cases in terms of applicable law. However, there is a big difference between them.
It is stipulated in Clause 2 of Article 142 of the General Principles of the Civil Law of the People's Republic of China that: “If an international treaty concluded or acceded to by the People's Republic of China contains provisions that differ from provisions of the Civil Law of the People's Republic of China, the provisions of the international treaty shall be applied, except those claimed to be reserved by the People's Republic of China.” This is the legal basis for Chinese court to choose international treaties as the judicial basis of foreign-related civil and commercial cases. According to the rule of international law that “treaties must be complied with”, Chinese court is obliged to apply international treaty in the process of hearing cases. Therefore, the court shall ascertain the real situation of the international treaty out of its own initiative when such international treaty shall be applied, including determining the official text of the international treaty, details of contracting countries, reservations by China and the correct meaning of the relevant articles, rather than asking the parties involved to supply such information, and this obligation cannot be passed on to the parties involved. In practice, some courts refused to use the applicable international treaty for the reason that the parties involved could not provide the text of the international treaty - United Nations Convention on Contracts for the International Sale of Goods and information of its contracting countries, but decided to apply Contract Law of People's Republic of China, a domestic law to decide cases. This is wrong and shall be corrected.
Clause 3 of Article 142 of General Principles of Civil Law of the People's Republic of China stipulates that “International practice may be applied to matters for which neither the relevant laws of the People's Republic of China nor any international treaty concluded or acceded to by the People's Republic of China has any relevant provisions.” This is the legal basis for Chinese court to choose the applicable international practice as the judicial basis of foreign civil and commercial cases. If the parties involved elect to apply the appropriate international practice, they are obliged to provide the text of such international practice; if the court decides to apply international practice proactively in the absence of relevant provision in laws and international treaties effective in China, the court shall determine the version and contents of the applicable international practice. For example, in the documentary L/C dispute cases, the parties would generally indicate the applicable international practice by expressly indicating that “This L/C is issued in accordance with the latest version of Uniform Customs and Practice for Documentary Credits by the International Chamber of Commerce”. Chinese court shall then determine the rights and obligations of the parties involved under the L/C in accordance with the latest version of Uniform Customs and Practice for Documentary Credits by the International Chamber of Commerce that is effective at the time of the hearing. Even if no applicable international practice is indicated in the L/C, Chinese court can still apply the internationally acceptable practice effective when the L/C was issued in accordance with Article 2 of Provisions of the Superior People's Court on Some Issues in the jurisdiction of Letter-of-Credit-related Cases (FS [2005] No.13).
2.If an error occurs when applying foreign law, can it be deemed that there is “an error of law”
When according to Chinese rules on conflict of laws, a case shall apply certain foreign law, if the judge erred in the process of applying this foreign law, I think it shall be deemed that there is “an error of law”, and the legal consequences of amendment of judgment upon appeal or retrial would ensue according to relevant provisions of the civil procedure law of the People's Republic of China. When a foreign law is applicable, such foreign law shall be directly taken as the judicial basis. If the judicial basis for the judgment is wrong, it apparently constitutes “an error of law”.
3.Ascertainment of overseas law in civil and commercial cases involving Hong Kong, Macao or Taiwan element
Law of the Application of Law for Foreign-related Civil Relations does not prescribe the principle to solve the private law conflict amongst Chinese regions. Hong Kong, Macao and Taiwan cases are always handled in ways comparable to the handling of foreign-related cases in juridical practice. Judicial Interpretation 2007 and Judicial Interpretation 2012 explicitly provide for “issues on the applicable law for civil relationships involving Hong Kong SAR and Macao SAR”, shall apply the provisions of these judicial interpretations. For the application of law in Taiwan-related cases, Article 1 of Provisions of the Superior People's Court on Some Issues in the Application of Law for Taiwan-related Civil and Commercial Cases (FS [2010] No.19) stipulates that “the People’s Court’s adjudication of Taiwan-related civil and commercial cases shall apply relevant provisions of the applicable law and judicial interpretation. If according to the rules on choice of law in the law and judicial interpretation the civil law of Taiwan is applicable, the people’s court shall apply this civil law.” Thus, the laws in Hong Kong, Macao and Taiwan shall be ascertained and applied by mainland courts according to the above principles when Hong Kong, Macao or Taiwan law is applicable according to the Chinese conflict of laws rules when hearing civil and commercial cases involving Hong Kong, Macao or Taiwan element. However, what needs to be emphasized is that under the “one country, two system” policy there is additional reason that mainland courts shall try their best to ascertain Hong Kong, Macao and Taiwan laws and correctly apply such laws, instead of applying mainland law on the basis that Hong Kong, Macao or Taiwan law cannot be ascertained, since this will damage the image as “one country”. For example, in a Hong Kong-related case, when the mainland court shall ascertain whether the plaintiff was the lawful successor of a deceased Hong Kong resident according to Hong Kong law, it applied mainland law to determine the status of the successor of a Hong Kong resident for the reason that the Law of Succession of Hong Kong could not be ascertained is improper and the result is unconvincing. I think the “no ascertainment” of overseas law scheme cannot be applied to disputes involving the private law conflict amongst Chinese regions.
The above is a brief analysis of the issues involved in the legal provisions on Ascertainment of Foreign Law and its actual practice in our courts according to my personal knowledge and practical experience in foreign-related civil and commercial cases, and some personal opinions directed at the existing problems are presented for consideration. Ascertainment of Foreign Law is self-evidently of practical significance for international private law, and of immense significance in the countries with a lot of international civil and commercial interactions. For this reason, in light of the present stage of historical development of our country, Chinese judges are even more obliged to strictly follow the Chinese conflict of laws rules, correctly determine the applicable law, pay special attention to the Ascertainment of Foreign Law issue when foreign law shall be applied, proactively ascertain foreign law through effective means, and fully listen to the opinions of the parties involved on the applicable foreign law to decide cases on the basis of such foreign law in the same manner as the foreign judges do.
①Xiao Yongping: The Searching and Application of Precedents in Anglo-American Legal System, China Legal Science, Issue 5, 2006, page 115.
②Li Wang: Preliminary Discussion on the Methods of Ascertainment of Foreign Laws, Political and Legal Forum, Issue 1, 2003, page 180.
③Li Wang: Preliminary Discussion on the Methods of Ascertainment of Foreign Laws, Political and Legal Forum, Issue 1, 2003, page 180.
④Li Wang: Preliminary Discussion on the Methods of Ascertainment of Foreign Laws, Political and Legal Forum, Issue 1, 2003, page 180.
⑤Huang Jin (editor in chief): International Private Law, Law Press, 2005 version, page 275.
⑥Xiao Fang: Abuse and Control of Chinese Court over “No Ascertainment of Foreign Law”, Legal Science, Issue 2, 2012, page 103.
⑦I served as a visiting scholar in Max Planck Institute from August to October, 2012, when I specifically studied how Max Planck Institute is commissioned by the German court to present opinions on foreign law.
⑧This case applied Hong Kong law, but not foreign law. At present, Hong Kong, Macao and Taiwan-related cases are handled in the same manner as foreign-related cases in Chinese juridical practice, so ascertainment of Hong Kong law is similar to Ascertainment of Foreign Law , and this example is only taken to explain the effective way for ascertainment of overseas law.
⑨It is not a foreign-related case, this example is only taken to explain how to determine the overseas law.
⑩Xu Peng: Ascertainment of Foreign Law: Thoughts on Borrowing Rules - Take the Ascertainment System of Foreign Law in Germany as an Example, Journal of Comparative Law, Issue 2, 2007, page 65.
(11)Ou Fuyong: On the Applicable Law Under Failure to Prove Foreign Law, Journal of Swupl, Issue 5, 2007, page 42.
(12)Xiao Fang: Abuse and Control of Chinese Court over “No Ascertainment of Foreign Law”, Legal Science, Issue 2, 2012, page 103.
(13)Xiao Fang: Abuse and Control of Chinese Court over “No Ascertainment of Foreign Law”, Legal Science, Issue 2, 2012, page 103.
(14)Fentiman:English Private International Law at the End of the 20th Century:Progress or Regress? Kluwer Law International,2000,pp.187-188. Quoted by Xu Jintang: About “Will and Responsibility” for Ascertainment of Overseas Law - based on the Foreign-related Civil and Commercial Ajudication Practice in China, Law Review, Issue 1, 2010, page 74.
(15)Xiao Fang: Abuse and Control of Chinese Court over “No Ascertainment of Foreign Law”, Legal Science, Issue 2, 2012, page 103.
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*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.