The Voice of Chinese Judges Seriesis a collection of selected articles of Chinese judges introducedby the China Justice Observer (CJO), to reflect their thoughts on theexisting issues concerning China’s law and judicial system.
In order to reflect Chinese judges’views on ascertainment of foreign law in trial, this post is an introduction tothe article titled “From Law in Written to Law in Action” (从“纸面上的法律”到“行动中的法律”)written by Judge Guan Junbing (Judge of Yichun Intermediate People’s Court inJiangxi province). This article is included in the “Awarded Symposia of the28th National Courts’ Academic Session” (全国法院第28届学术讨论会获奖论文集)published in May 2017.
Chinese courts have long beenperplexed by the problem of how to accurately ascertain and apply foreign law.Through an analysis of 50 cases heard by Chinese courts, the author concludedthat there is a tendency to apply the lex fori, i.e., Chinese law, which isfamiliar to Chinese judges, on the grounds of failure to prove the foreign law,due to the fact that the judges lack convenient means in ascertainment.However, Chinese courts are now taking an active role to face this problem andadopting measures to resolve it.
The author collected and analyzed50 cases from 1998 to 2015, in which Chinese courts applied foreign law as thegoverning law. Considering there are only a handful of cases applying foreignlaw in China, in the author’s opinion, the said 50 cases are enough to reflectthe reality of the ascertainment of foreign law in Chinese judicial practice.
1.The success rateof ascertainment of foreign law remains low
Among the 50 cases, the number ofcases where foreign law was ascertained and that of their counterparts are asfollows:
2011-2015 | 2005-2010 | 1998-2004 | Total | |
Ascertained | 5 | 6 | 9 | 20 |
Not Ascertained | 16 | 9 | 5 | 30 |
Chart 1
Chart 1 shows that the rate offoreign law being ascertained is still low, only 20 out of 50 cases havebeen ascertained.
2. The main reason for failure toascertain is that parties could not provide foreign law
Among 30 cases where courts failedto ascertain the exact foreign law, 16 cases were due to the failure to proveforeign law by parties. This shows that parties had difficulties to proveforeign law though many of them pleaded to apply. Even Alibaba, the biggestInternet company in China, failed to prove Cayman law, which they pleaded toapply in a trial.
3. Methods to ascertain foreign lawand their respective adoption rate
Pursuant to Chinese law, theapplicable foreign law may be ascertained in the following five ways: (1）provided by the litigant, (2) provided by the central organization of thecountry having entered into the judicial assistance treaty with China, (3)provided by Chinese embassy or consulates in that foreign country, (4) providedby foreign embassy or consulates in China, (5) provided by Chinese or foreignexperts.
Among the 50 cases, the number oftimes each ascertainment method had been used and the number of cases whereforeign law proved through such method had been adopted are as follows:
Chart 2
Conclusions from Chart 2:
(1) While “proof by parties” and“proof by foreign experts” are the most frequently used methods in the proof offoreign law, the likelihood of a foreign law, that was proved through suchmethods, to be adopted by Chinese courts remains the lowest.
(2) The ranking of the adoptionrates among those methods is: (a) embassy or consulate / Chinese experts, (b)academic papers, (c) Internet, (d) litigants, (e) foreign experts.
4.Measures:platforms for discerning foreign law have been established
At present, Chinese judges arestill lacking convenient and efficient methods to ascertain foreign law. Due tohigh workloads and strict requirements on judges to close cases on time,Chinese judges tend to avoid consuming too much time and energy onascertainment of foreign law, in order to reduce their workload and settlecases as soon as possible. Consequently, the judges are more willing to applythe lex fori (i.e. Chinese law) which they are much more familiarwith, on the grounds that foreign law cannot be ascertained.
To solve this problem, China’sSupreme People’s Court (SPC) has been successively promoting relevantorganizations to establish platforms for discerning foreign law, such as the“China Institution for Discerning Foreign Law” at China University of PoliticalScience and Law. The SPC also recommend local courts nationwide to commissionthese platforms to ascertain foreign law.
Notes by CJO: Platforms fordiscerning foreign law recommended by the SPC have now begun to play theirrole. At the beginning of 2018, the Tianjin Maritime Court commissioned the“China Institution for Discerning Foreign Law” at China University of PoliticalScience and Law to ascertain Mexican law concerning an insurance contractdispute. The expert who completed the ascertainment appeared in court andresponded to inquiries.
