China’s Supreme Court Talks about Recognition and Enforcement of Foreign Judgments in China -The Voice of Chinese Judges Series

Shen Hongyu (沈红雨), Judge of the 4th Civil Division of China’s Supreme People’s Court (SPC), talks about recognition and enforcement of foreign civil and commercial judgments in China, in her recent article titled “Research on Some Difficult Problems in Recognition and Enforcement of Foreign Civil and Commercial Judgments” (外国民商事判决承认和执行若干疑难问题研究). According to related reports, Judge Shen Hongyu was involved in the drafting of the SPC’s “Judicial Interpretation on the Recognition and Enforcement of Foreign Civil and Commercial Judgments” (最高人民法院关于承认与执行外国法院民商事判决的司法解释).
Judge Shen focused on 3 issues: whether foreign courts have jurisdiction; whether foreign courts ensure that the parties are properly notified and enjoy the right to be heard; the reciprocal relationship between China and the country where the judgment is rendered.
1. The review model on foreign civil and commercial judgments in Chinese courts
The system of recognition and enforcement of foreign civil and commercial judgments has only been established in principle by the PRC Civil Procedure Law (CPL), which only requires that the review model be determined according to international treaties and reciprocal relationships.
2. Chinese courts review the competence of foreign courts.
The competence of judgment-making foreign courts is a prerequisite for Chinese courts to recognize and enforce the foreign judgments. Judge Shen believes that Chinese courts should examine whether foreign courts have jurisdiction pursuant to Chinese jurisdiction rules. In other words, foreign civil and commercial judgments must not violate Chinese exclusive jurisdiction rules; the choice of foreign court agreements between parties must comply with Chinese laws; Chinese courts have neither rendered judgments on the same dispute nor recognized and enforced the judgments on the same dispute rendered by courts of other countries and regions; the parties did not reach a written agreement for arbitration with respect to the same dispute.
3. Chinese courts review whether the judgment-making foreign court ensures due process and sufficiently guarantees the parties’ litigation rights.
When examining whether the foreign civil and commercial judgment has guaranteed the parties’ rights to due process, Chinese courts mainly focus on the following five issues:
(1) On the legal criteria for determining whether the service procedure is legal. Judge Shen considers that Chinese courts should determine whether the service is legal according to the law of the country where the judgment is rendered.
(2) Service to China must not violate the CPL’s compulsory provisions regarding service. More specifically: i. Service within China should be conducted pursuant to treaties or through diplomatic channels. In addition, no foreign agency or individual may serve documents within the territory of China without the permission of Chinese competent authorities. ii. When acceding to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (The Hague Service Convention), China explicitly opposed service by post.
(3) Whether the legal notification method should include service by public notice. Judge Shen believes that if the law of the country where the judgment is rendered allows the service by public notice and the conditions applied are basically similar to those of Chinese laws, then the Chinese court should confirm the legality of the service by public notice.
(4) Whether the foreign court’s service should be accompanied by the corresponding translation based on the nationality of the losing defendant. Judge Shen believes that in terms of the service conducted in accordance with a bilateral judicial assistance treaty or The Hague Service Convention, it should be determined whether translation should be provided pursuant to the requirements of the international treaty. However, if the foreign court conducts the service within the territory of that foreign country, it shall be determined according to the laws of that country.
(5) Where even if the judgment-making foreign court has a flaw in the notification procedure, the parties have already appeared in court to respond to the case, which means that the parties have actually enjoyed the right of defense, the Chinese court cannot refuse to recognize and enforce the foreign judgment on the ground of inadequate notice.
4. How should Chinese courts treat a reciprocal relationship?
For a long time, China has insisted on de facto reciprocity. Judge Shen considers that de facto reciprocity not only makes it difficult for foreign civil and commercial judgments to be recognized and enforced by Chinese courts, but also potentially causes foreign courts to refuse to recognize Chinese judgments on the basis of the principle of reciprocity, and has also led to a large number of parallel proceedings.
Judge Shen believes that in order to serve the construction of China’s “Belt and Road initiative”, Chinese courts should rationally loosen the criteria for reciprocal relationships, thus promoting cooperation in cross-border recognition and enforcement of judgments between countries.
She also indicates that the “Several Opinions of the Supreme People’s Court on Providing Judicial Services and Safeguards for the Construction of the ‘Belt and Road’ by People’s Courts” (关于人民法院为“一带一路”建设提供司法服务和保障的若干意见) issued by the SPC in 2015 and the “Nanning Statement” (南宁声明) approved by the 2nd China-ASEAN Justice Forum in 2017 are breakthroughs made by Chinese courts regarding the principle of reciprocity.
For full text, please click here.

